• by Wendy Davis  @wendyndavis, October 13, 2015

A consumer who sued Campbell-Ewald for sending him an unsolicited text ad should have been forced to accept a $1,500 settlement offer, the agency is telling the U.S. Supreme Court.

"When a plaintiff has been offered all the relief that he has sought, the requisite case or controversy is lacking, no matter how badly a plaintiff might wish to proceed with the litigation and have the courts expound on the law or any underlying issue," Campbell-Ewald argues in its written brief.

The agency is asking the Supreme Court to prevent Illinois resident Jose Gomez from proceeding with a potential class-action lawsuit that stems from an ad campaign on behalf of the U.S. Navy.

The Supreme Court will hear arguments in the case on Wednesday.

Gomez sued Campbell-Ewald in 2010 for allegedly violating the Telephone Consumer Protection Act with an allegedly "bungled" texting initiative. That law prohibits companies from using autodialers to send text ads to consumers without their written consent. The statute provides for damages of $500 per violation.

Gomez says in court papers that he received a text ad sent by Campbell-Ewald "even though he had never consented to receive it and was nearly 40 years old at the time -- far above the Navy-approved age range." Gomez also says Campbell-Ewald didn't verify that its list of recipients had consented to receive text messages.

The ad agency offered Gomez around $1,500 to settle the case. He rejected the deal, arguing that he was entitled to pursue a class action on behalf of all message recipients.

"Mr. Gomez had good reason for rejecting Campbell-Ewald’s settlement offer: He sued as the representative of a class, and no suitable class representative would cut a deal that gives himself full recovery at the expense of the class members that he seeks to represent," his lawyers argue in court papers.

Last year, the 9th Circuit Court of Appeals sided with Gomez, ruling that the lawsuit could proceed.

Campbell-Ewald is now asking the Supreme Court to reverse that decision and hold that the settlement offer should have ended the lawsuit. "The best case scenario was that, after litigating the case, plaintiff would have secured the same relief that Campbell-Ewald had offered up front," the agency argues.

The ad agency also contends it's immune from liability because the message was sent on behalf of the Navy, which itself can't be sued for violations of the Telephone Consumer Protection Act.

The case has drawn the outside interest of several groups, including the U.S. Chamber of Commerce. That organization argues that consumers shouldn't be allowed to proceed with class actions when defendants offer to settle by paying the maximum amount of statutory damages. "Allowing such class actions to proliferate harms defendants and the judicial system alike, because it encourages lawsuits and discourages settlements," the Chamber argues in a friend-of-the-court brief.

The Obama administration is siding with Gomez. U.S. Solicitor General Donald Verilli argues in a friend-of-the-court brief that Gomez was entitled to pursue a class-action, even though he was offered the maximum amount of damages he could receive as an individual.