Reply Brief — Campbell-Ewald Co. v. Gomez, 135 S. Ct. 2311 (2015) (No. 14-857)

Supreme Court, US.

FILED

SEP 22 2015

OFFICE OF THE CLERK

No. 14-857

35n the

Supreme Court of the Anited States

CAMPBELL-EWALD COMPANY,

Petitioner,

Vv.

JOSE GOMEZ,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

LAURA A. WYTSMA GREGORY G. GARRE

MEREDITH J. SILLER Counsel of Record

LOEB & LOEB LLP MELISSA ARBUS SHERRY

10100 Santa Monica Bivd. MICHAEL E. BERN

Suite 2200 NICOLE RIES Fox

Los Angeles, CA 90067 LATHAM & WATKINS LLP

(310) 282-2000 556 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw .coin

Counsel for Petitioner

TABLE OF CONTENTS

Page

Pe ill ii

FELT ES EN Le en eee ee l

ETT ETE NE |

A. Plaintiffs Position Contravenes Basic

Oe Ce 2

B. An Interest In The Potential] Benefits Of

Class Litigation Is Insufficient.....................-+- 6

C. This Case Should Come To An End............... 10

Il. CAMPBELL-EWALD IS ENTITLED TO

FREES SD EE ee Cr ee 12

A. All Agree The Ninth Circuit Erred............... 12

B. Contractors, Just Like Individuals,

Enjoy Immunity For Acts Within The

Scope Of Their Duties ..............c.--ececsessceeseeessees 13

C. At A Minimum, Campbell-Ewald Is

Immune From Vicarious Liability ................. 21

Se ES censamnesnsnsnsrprescenensumetevemmmuapennsseiirnnssesmnens 22

ii

TABLE OF AUTHORITIES

CASES

Abrams v. Interco, Inc.,

719 F.2d 23 (2d Cir. 1983) ..........cscscssevseserenenees

Adkisson v. Jacobs Engineering Group, Inc.,

790 F.3d 641 (6th Cir. 2015) .2000......-eeceeeeeeee

Aetna Life Insurance Co. v. Haworth,

eB ee

Al Shimari v. CACI International, Inc.,

679 F.3d 205 (4th Cir. 2012) ............-ccecesereeeens

Already, LLC v. Nike, Inc.,

133 S. Ct. 721 (2013) .........000-. Lasenenasosmasaaneansnens

Barr v. Matteo,

SED UE, BES CREO ccctscsssassescscssscsnsessssnsscsnscccene

Better Government Bureau, Inc. v. McGraw

(In re Allen),

106 F.3d 582 (4th Cir. 1997), cert. denied,

Oe

Board of School Commissioners v. Jacobs,

TE

Boyle v. United Technologies Corp.,

Ge DE Ga GD ccenencansncsenspersnssennsenesemenese

Brady v. Roosevelt Steamship Co.,

Be Ce I D ctggenccnescsrecrnesenseeennemesmene

TABLE OF AUTHORITIES—Continued

Briscoe v. LaHue,

460 U.S. 325 (19838) .........c.c.cscocsssesscersscessesseees

California v. San Pablo & Tulare Railroad

Co.,

149 U.S. 308 (1893) ...........ccccoccsscocsssscesessorseeses

Chicago & Grand Trunk Railway Co. v.

Wellman,

BED WO, SP Gee crccsccscccnsssssesesesnennsesesenssnsces

Clapper v. Amnesty International USA,

133 S. Ct. 1138 (2013) .........cecseserseseeneserereeneenes

DaimlerChrysler Corp. v. Cuno,

547 U.S. SB2 (2006) ............cscecscccccscsescseosseseceee

Damer v. Earl of Portarlington,

2 PH 30, 41 Eng. Rep. 852 (1846)...

Delta Air Lines, Inc. v. August,

450 U.S. 846 (1981) ............cceccscossssorecssssorseseree

Deposit Guaranty National Bank v. Roper,

445 U.S. B26 (19GB) ....-cececsecscscsescsevssccssssecsesesee

DeVargas v. Mason & ilanger-Silas Mason

Co.,

844 F.2d 714 (10th Cir. 1988) ...........00cs0e0ss00

Espenscheid v. DirectSat USA, LLC,

688 F.3d 872 (7th Cir. 2012) ............cccc-ssereeees

Page(s)

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Field v. Robinson,

7 Beav. 66, 49 Eng. Rep. 987 (1844) ..........ccccescerseeeeeee 4

Filarsky v. Delia,

RR 14, 18, 19, 20

Genesis Healthcare Corp. v. Symezyk,

RB es 1, 2, 7, 12

Gould v. Control Laser Corp.,

866 F.2d 1391 (Fed. Cir. 1989) 0.0... ccccceeceseesenenees 11

Gregoire v. Biddle,

SO ee ee ee I cceretenscssecccssnscscnssensenniorncses 16

Harlow v. Fitzgerald,

gg | eee 15

Holden v. Kynaston,

2 Beav. 204, 48 Eng. Rep. 852 (1846) ..0........ccsceseeees 4

Holloman v. Harland,

STO FBG IGE (L1G Cole. BBB) nccccrccsccscsecssescsccsnsssseses 16

Iron Arrow Honor Society v. Heckler,

Re ee Ce ttenrteicrtcrreteniennapetnininntnimmasemmerciens 11

In re KBR, Inc.,

925 F. Supp. 2d 752 (D. Md. 2013), vacated

on other grounds sub nom. Metzgar v.

KBR, Inc. (In re KBR, Inc.), 744 F.3d 326

(4th Cir. 2014), cert. denied, 135 S. Ct. 1153

v

TABLE OF AUTHORITIES—Continued

Page(s)

Key Tronic Corp. v. United States,

I 6

Lewis v. Continental Bank Corp.,

ERS SL a ER RES x

Lord v. Veazie,

gE GR KN eee 2

Metzgar v. KBR, Inc. (In re KBR, Inc.),

744 F.3d 326 (4th Cir. 2014), cert. denied,

I ns 15, 20

Mills v. Richardson,

TE ere 10

The Paquete Habana,

SE a ee ee 15

Pasadena City Board of Education v.

Spangler,

CE ET RE

Pearson v. Callahan,

ae rr 17

Peralta v. Heights Medical Center, Inc.,

EE TERA SSE ee 06 ee ee 5

Pope v. United States,

ee ee 12

Richardson v. McKnight,

Se a TE aceioriicesienstiaiiicintniiitinipaicincitatianplannibaiiiinsinis 20

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Robertson v. Sichel,

EE eee eet aN 22

Rufo v. Inmates of the Suffolk Cownty Jail,

I I altar criecnnnceiniiasiiiitianns 12

Sherman v. Four County Counseling Center,

og eg en 19

Simons v. Bellinger,

gh | ode 14

Sinochem International Co. v. Malaysia

International Shipping Corp.,

gS Tne Oe 1]

Sloan Shipyards Corp. v. United States

Shipping Board Emergency Fleet Corp.,

ae 19, 20

Society for Good Will to Retarded Children,

Inc. v. Cuomo,

fg 5 SRS cen eE 10

Sosna v. Iowa,

i 8

Steel Co. v. Citizens for a Better

Environment,

SEE es ee eee ee I ®

United States v. Ceccolini,

Te Oe en ema, 5

Vil

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Windsor,

8 | aE

United States Bancorp Mortgage Co. v.

Bonner Mall Partnership,

ae Se eicittitnnrarinsaccnneniiannscumenimemenanmenies 2,11

United States Parole Commission v.

Geraghty,

TE ssiciciniiitenivsieninnitcinanentieniiaindaaniaimmiasi 7

Vermont Agency of Natural Resources v.

United States ex rel. Stevens,

ee I iicticiecretslietetitaneeeasiciienieiienininniiiiiptit 8

Yearsley v. W.A. Ross Construction Co.,

ee eT cicteisciniiscninchicntnsistiniininnsapetiiiiniatininininitiniuen 12

OTHER AUTHORITIES

Ss Nes Il ccesteessipieseveneicinnneicenieecitaiiintiapciniameeciinin 1)

INA UE I cnincsicieentecinieateciiibibscitiiadaeiabainicitiiate 6

James E. Pfander & Danie! D. Birk,

Article III Judicial Power; the Adverse-

Party Requirement, and Non-Contentious

Jurisdiction, 124 Yale L.J. 1346 (2015)................2000- 3

Restatement (Third) of Agency § 1.01 (2006) ............... 21

TABLE OF AUTHORITIES—Continued

Page(s)

Joseph Story, Commentaries on the Law of

SG, Ti erieterntienaiitinscivinianmmamamacsniomes 21

a ic Bile Bi iccnietencencnctanntstinniennimienenaiemnind 6

ARGUMENT

I. THIS CASE IS MOOT

When all is said and done, even Plaintiff and the

United States admit that a case must come to an end

when further litigation is pointless. Resp. Br. 32; U.S.

Br. 8. They say the test is whether a plaintiffs refusal

to accept an offer of capitulation is based on “obstinacy

or vindictiveness.” Jd. But Article III jurisdiction

does not turn on a plaintiffs subjective intent in

refusing an offer; it turns on whether a plaintiff retains

a personal stake in the outcome of the litigation. Here.

that determination turns on an objective inquiry into

whether the defendant’s offer is for complete relief, i.e..

everything the plaintiff could secure through a

judgment in his favor. Plaintiff says he cannot be

“forced” to accept full relief. But the real question is

whether a plaintiff can force a court to adjudicate a

case—and expound on the law in doing so—when the

defendant has already capitulated. Article III answers

that question with an emphatic no. Courts have “no

business” adjudicating such a case. DaimlerChrysler

Corp. v. Cuno, 547 U.S. 332, 341 (2006).

As the case reaches this Court, it is established that

Campbell-Ewald’s offer was for complete relief. The

district court so found (Pet. App. 40a), and the Ninth

Circuit decided the case based on that premise (id. at

5a). Based on Deposit Guaranty National Bank v.

Roper, 445 U.S. 326 (1980), Plaintiff and the

government argue that a plaintiffs potential interest—

before any class is certified—in the financial benefits of

class litigation is sufficient to keep a case alive. But

Genesis Healthcare Corp. v. Symezyk, 133 S. Ct. 1523,

1532 (2013), expressly limited Roper to its facts, i.e..

appeals from the denial of class certification. Plaintiff

2

and the government are asking the Court to extend

Roper well beyond its facts, and to recognize a new,

substantive right to class litigation that arises as soon

as a complaint is filed. There is no basis for creating

that right, and the Rules Enabling Act prevents it.

The only remaining question is how to dispose of

the case. The Court should remand with instructions

to dismiss the case as moot, as it would do if a case

settled. That would not leave Plaintiff “empty

handed.” Resp. Br. 10. If a defendant withdraws its

tender after dismissal, a plaintiff can reinitiate

litigation based on a change in circumstances negating

mootness. Infra at 10. Alternatively, the Court should

direct the district court to enter a judgment for

plaintiff based on the terms of the offer. Mootness

divests a court of power to adjudicate a case on the

merits, but not from taking non-merits-based steps to

dispose of a case in a manner “consonant to justice.”

U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513

U.S. 18, 24 (1994) (citation omitted). Such a judgment

unquestionably would satisfy, and thus moot, the claim.

A. Plaintiffs Position Contravenes Basic Article

III Principles

1. As Campbell-Ewald has explained (Pet. Br. 13-

16), Article III limits the jurisdiction of the federal

courts to cases that present “an actual controversy, and

adverse interests,” Lord v. Veazie, 49 U.S. (8 How.)

251, 255 (1850), maintained by a plaintiff who, at all

times, “possesses a legally cognizable interest, or

‘personal stake’ in the outcome of the action,” Genesis

Healthcare, 133 S. Ct. at 1528 (citations omitted).

Plaintiff ignores the “personal stake” requirement and,

astoundingly, argues that Article II] imposes no

adversity requirement. Resp. Br. 10-11, 19-23.

3

But this -Court’s cases make clear that a plaintiff

must show ‘that he has a “personal stake” in the

outcome of the action at all times (Pet. Br. 14-15), and

adversity has been recognized as a fundamental

requirement of Article III since the founding. See, e.g.,

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41

(1937); Chicago & Grand Trunk Ry. Co. v. Wellman,

143 U.S. 339, 345 (1892). The exceptional cases cited by

Plaintiff (at 21-22) do not override that requirement, or

excuse the lack of adversity as a matter of “common

practice in ordinary cases.” United States v. Windsor,

133 S. Ct. 2675, 2688 (2013). In each of these cases,

individual plaintiffs, who petitioned the government to

“assert, register, or claim a legal interest under federal

law,” retained a concrete, personal stake in the

outcome of the case. James E. Pfander & Daniel D.

Birk, Article III Judicial Power; the Adverse-Party

Requirement, and Non-Contentious Jurisdiction, 124

Yale L.J. 1346, 1355 (2015). A plaintiff who has been

handed everything he could obtain through a favorable

judgment no longer has such a personal stake.

2. Plaintiff says (at 23) there is “[nJo [ajuthority”

supporting Campbell-Ewald’s position. But whereas

Plaintiff relies almost exclusively on the dissent in

Genesis Healthcare, Campbell-Ewald has pointed to

several cases, including California v. San Pablo &

Tulare Railroad Co., 149 U.S. 308 (1893), showing that

the tender of complete relief moots a case—regardless

of whether it is accepted. Pet. Br. 16-19. Plaintiff tries

(at 11, 24-26) to dismiss San Pablo as old or irrelevant.

But San Pabdlo is clearly valid precedent (cf. id. at 26

n.6) and it unmistakably speaks to the “power,” i.e.,

jurisdiction, of the courts. 149 U.S. at 314 (court is “not

4

empowered to decide moot questions”); see id. (refusing

to “enlarge the power” of the court).

Nor is this precedent an aberration. It is consistent

with a long line of English authorities holding that “it is

the bounden duty of this Court to put a stop to any

further proceedings” once a defendant offers to fully

satisfy a claim, even if the defendant’s offer “was not

accepted.” Holden v. Kynaston, 2 Beav. 204, 206, 205,

48 Eng. Rep. 1158, 1159, 1158 (1840); see also, ¢.g.,

Damer v. Earl of Portarlington, 2 PH 30, 35, 41 Eng.

Rep. 852, 854 (1846) (“Upon the general principle, there

can be no doubt, that where a suit is instituted, and the

Defendant comes and tenders all that the Plaintiff asks,

there is jurisdiction in the Court to prevent the

Plaintiff from going on.”); Field v. Robinson, 7 Beav.

66, 67, 49 Eng. Rep. 987, 988 (1844) (same).

Plaintiffs “acceptance” theory is also at odds with

modern Article III precedents, including Clapper v.

Amnesty International USA, 133 S. Ct. 1138, 1151

(2013), in which the Court stressed that parties cannot

“manufacture” Article III jurisdiction “merely by

inflicting harm on themselves.” See Pet. Br. 22-23. Yet

that is the essence of Plaintiff's theory—a plaintiff can

manufacture jurisdiction simply by refusing to accept

everything that he could secure through a judgment,

the judicial equivalent of a hunger strike.

Likewise, under the “voluntary cessation” doctrine,

a defendant’s unilateral decision to cease the

challenged conduct moots a claim for prospective relief

if it is clear that the defendant will not engage in the

conduct again, regardless of whether the plaintiff

consents to the defendant’s actions or agrees that they

moot his claim. See, e.g., Already, LLC v. Nike, Inc.,

133 S. Ct. 721, 727 (2013). It follows that a defendant’s

5

unilateral act (the offer) moots a claim for retrospective

relief if it is tlear that the offer is for complete relief,

In both situations, a court must determine if the

defendant’s unilateral act giv's the plaintiff all the

relief he could secure from a favorable judgment. And

in both, the case is moot if the answer is yes.

Plaintiff points (at 19) to a criminal defendant’s

guilty plea. But while a guilty plea may certainly moot

particular issues (such as a pre-trial ruling or the

guiltimnocence determination), the criminal context is

fundamentally different. Among other things, the

government retains a concrete interest in the case until

a conviction has been entered and the sentence served.

And of course, the government cannot force a court to

conduct a trial on the merits once a plea is entered.

Presumably this all explains why the United States

itself has not embraced this analogy.

3. Falling back, Plaintiff argues (at 12, 32-33) that

Campbell-Ewald’s offer was not for complete relief.

This argument asks the Court to overturn a finding

made by the district court, Pet. App. 40a, and relied

upon by the Ninth Circuit, id. at 5a. See United States

v. Ceccolini, 435 U.S. 268, 273 (1978) (discussing the

“traditional deference to the ‘two court rule” (citation

omitted)). Moreover, the Court’s customary practice is

to “deal with the case as it came here and affirm or

reverse based on the ground relied upon below.”

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86

(1988). In any event, this argumenit fails.

In opposing certiorari, the only reason Plaintiff

gave in claiming that the offer was not for “full relief”

(as the question presented stated) was that it did not

provide for attorney’s fees. Opp. 23. But a plaintiff is

not entitled to attorney's fees unless Congress

6

authorizes them, Key Tronic Corp. v. United States,

511 U.S. 809, 814 (1994), which the TCPA does not.

Because Plaintiff has no right to recover attorney’s

fees if he wins, the absence of such fees does not make

the offer for anything less than complete relief.

Plaintiffs new arguments (at 32-33) that Campbell-

Ewald’s offer was not for complete relief are waived.

Sup. Ct. R. 15.2. In any event, as the government’s

own question presented recognizes (at I), Campbell-

Ewald offered Plaintiff an amount “greater than the

maximum damages that [he] could have obtained by

litigating th{e) individual claim to judgment.”

4. The government’s focus (at 13) on the mechanics

of Rule 68 is misplaced. Campbell-Ewald made a

separate tender that remains outstanding (which, to be

clear, did not expire by its terms, cf. U.S. Br. 5). Pet.

App. 57a-59a. In any event, Rule 68 was not designed

for the situation in which a defendant makes an offer of

complete relief. Cf. Delta Air Lines, Inc. v. August,

450 U.S. 346, 352 (1981) (Rule 68 applies where

“amount of recovery is uncertain”). At that point,

Article ITI, not Rule 68, controls. Fed. R. Civ. P. 82.

B. An Interest In The Potential Benefits Of

Class Litigation Is Insufficient

Plaintiff appears to have abandoned the “inherently

transitory” and “relation-back” rationale relied on by

the Ninth Circuit. Pet. Br. 29-30. Instead, Plaintiff (at

36-43) and the government (at 20-22) argue that a

potential interest in the “cost-sharing” benefits of class

litigation—before any class is certified—is sufficient to

keep a case alive. Plaintiff did not make this argument

in his opposition brief or the Ninth Circuit, so it is

waived. In any event, this new argument fails.

7

1. This .cost-sharing argument is grounded on

Roper. But Roper involved only whether a plaintiff

could appeal a ruling denying class certification—an

issue that was “collateral to the merits of a litigation.”

445 U.S. at 336. In answering that question. the Court

held that a court “had jurisdiction to entertain the

appeal only to review the asserted procedural error,

not for the purpose of passing on the merits of the

substantive controversy.” Id.; accord United States

Parole Comm'n v. Geraghty, 445 U.S. 388, 404 (1980).

Here, there is no class-certification ruling, and Plaintiff

is arguing that the case is live for al! purposes,

including “the merits of the substantive controversy.”

Moreover, Genesis Healthcare explicitly limited

Roper to its “particular circumstances.” 133 S. Ct. at

1532. Because Roper was “distinguishable on the

facts,” the Court had no need to reconsider the

“continuing validity” of Roper’s view that the potential

benefits of class certification justified an appeal from a

ruling denying certification. Jd. at 1532 n.5. Because

Roper is likewise distinguishable here, there is again no

need “to overrule Roper” (Resp. Br. 38). But Plaintiff

and the government do not seek an application of

Roper, they seek a vast extension of it to create a right

to class litigation as soon as a complaint is filed. That

would fly in the face of Genesis Healthcare.

Not to mention Lewis v. Continental Bank Coryp..

494 U.S. 472 (1990). In Lewis, the Court held that an

“interest in attorney’s fees is, of course, insufficient to

create an Article III case or controversy where none

exists on the merits of the underlying claim.” /d. at

480. Likewise, the Court has repeatedly confirmed

that “an interest that is merely a ‘byproduct’ of the suit

itself cannot give rise to a cognizable injury in fact for

8

Article III standing purposes.” Vermont Agency of

Natural Res. v. United States ex rel. Stevens, 529 U.S.

765, 773 (2000); see Steel Co. v. Citizens for a Better

Env't, 523 U.S. 83. 107 (1998). The government used to

recognize the force of Lewis, but here it attempts an

unacknowledged, below-the-margin flip on Lewis's

direct bearing on this issue. Compare U.S. Brief 27 n.4,

Genesis Healthcare, 133 S. Ct. 1523 (2013) (No. 11-

1059), 2012 WL 4960359, with U.S. Br. 22 n.7.2

Plaintiffs argument (at 33) that a mere demand of

“class-wide relief” can keep a case alive also fails. If

that were enough, then Roper would have been decided

on that broader ground. In any event, because a class

lacks any separate “legal status” before certification,

there is no cognizable interest in class relief before

certification. Sosna v. Iowa, 419 U.S. 3938, 399 (1975);

see Pasadena City Bd. of Educ. v. Spangler, 427 U.S.

424, 430 (1976); Board of Sch. Comm'rs v. Jacobs, 420

U.S. 128, 129-30 (1975). As Judge Friendly put it, “we

know of no principle that a plaintiff must be allowed to

pursue litigation in which he no longer has an interest

merely because this could benefit others.” Abrams v.

Interco, Inc., 719 F.2d 28, 33 n.9 (2d Cir. 1983).

1 Plaintiffs “incentive award” argument (at 35) likewise

fails. At best, this is just a “byproduct of the suit” too.

Espenscheid v. DirectSat USA, LLC, 688 F.3d 872, 874-75

(7th Cir. 2012), the lone case Plaintiff cites, is distinguishable

because the plaintiffs there (unlike Plaintiff here) pointed to

a specific “provision of [a] settlement agreement,” and the

court held only that this interest was sufficient to permit an

appeal of the denial of class certification. In any event, this

argument is new, and thus waived.

9

2. Plaintiffs and amici’s objections to Campbell-

Ewald’s position boil down to policy arguments that

not only are better reserved for Congress but overlook

that Congress actually intended that TCPA claims

would be brought on an individual basis (Pet. Br. 3-4).

These arguments lose considerable steam when

Plaintiff acknowledges (at 42) that what is really at

stake in this kind of case is “pennies on the dollar” for

the unnamed individuals who allegedly received

unsolicited recruiting text messages. In any event,

such policy arguments cannot override Article III’s

fundamental limits. Nor can they transform Rule 23’s

procedural rule into a font of substantive rights.

And, in the end, respecting Article III’s limits will

not spell the end of class actions. In many, if not most

cases, an offer of complete relief will be infeasible

because the defendant is unwilling to pay, damages are

uncertain, or there are too many others lining up for

relief. By contrast, allowing a plaintiff with a moot

claim to proceed on behalf of a putative class serves

only the interests of attorneys seeking a windfall in

fees by leveraging the threat of certification into a

lucrative settlement. One can see the allure of that

approach from the class action bar’s perspective. But

Article III demands the existence of an actual “case or

controversy,” not the possibility of a pot of gold.

2 Plaintiff's suggestion (at 38 n.12) that Campbell-Ewald

somehow “induced” experienced counsel to delay a class-

certification motion is false. Pet. CA9 Reply in Supp. of

Mot. to Dismiss 7-8, ECF No. 16-1.

10

C. This Case Should Come To An End

1. Once a court determines that a defendant has

tendered full relief, the court should dismiss the case as

moot, just as a court would do after finding that a case

settled. Pet. Br. 19-22. Remarkably, Plaintiff asks (at

31 n.9) the Court to “clarify” (7.e., rewrite) its many

decisions recognizing that settlement moots a case and

thus triggers dismissal. But instead of unsettling this

caselaw and common practice, the Court should follow

this example and hold that dismissal is required here.

That result will not leave plaintiffs “empty-handed.”

Resp. Br. 10. If there is a change in circumstances

negating the reasons for finding mootness, a plaintiff

can reinitiate litigation. See, e.g., Mills v. Richardson,

464 F.2d 995, 1000 (2d Cir. 1972) (Friendly, J.) (case

dismissed as moot based on _ government’s

representation that it would pay benefits at issue was

“no longer moot” after government notified plaintiff

that it would seek recoupment of such benefits);

Society for Good Will to Retarded Children, Inc. v.

Cuomo, 832 F.2d 245, 246 (2d Cir. 1987) (similar).

2. At a minimum, the district court should dispose

of the case by entering judgment for Plaintiff according

to the terms of the offer, as the Sixth Circuit has

instructed. Pet. Br. 10, 21. And that alternative

argument is neither a “concession” (Resp. Br. 14) that

the case is not moot nor a “self-contradict[ion}” (U.S.

Br. 7-8) in light of the fact that it is moot.

3 Nor is this argument waived. U.S. Br. 15. Campbell-

Ewald raised it in its certiorari petition (at 14 n.3, 17; see

Cert. Reply 7), Plaintiff has never argued waiver, and it is

fairly included in the first question presented. See U.S. Br.

11

Mootness: deprives a court of the power to

adjudicate tHe case on the merits, 7.e., “to decide” the

case. [ron Arrow Honor Soc’y v. Heckler, 464 U.S. 67.

70 (1983). But mootness does not render a court

powerless to take non-merits steps to dispose of the

case “consonant to justice.” U.S. Bancorp Mortg. Co.,

513 U.S. at 24 (citation omitted); see Sinochem Int'l.

Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431

(2007) (“[J Jurisdiction is vital only if the court proposes

to issue a judgment on the merits.” (citation omitted)).

There is no basis for limiting this principle to appellate

courts, who have no more Article III power than

district courts. Cf Resp. Br. 15-16.4

Entry of judgment for plaintiff in accordance with a

defendant’s offer of full relief simply recognizes the

circumstances by which it became moot. This approach

is not novel. Pet. Br. 21. And it accords with how

courts have commonly dealt with the analogous

situation of settlements and consent decrees. See, e.g.,

Gould v. Control Laser Corp., 866 F.2d 1391, 1392 (Fed.

Cir. 1989) (“Settlement moots an action, although

jurisdiction remains with the district court to enter a

consent judgment.” (citations omitted)). Like a consent

decree, a judgment in accordance with the terms of an

offer of complete relief is “enforceable as[] a judicial

decree ... subject to the rules generally applicable to

18 n.6 (acknowledging that courts have discussed the “entry

of judgment” argument in “moot[ness]” terms).

4 Rule 12(h)(3) does not prevent a court from taking non-

merits steps to dispose of a case. Cf. Resp. Br. 18. Indeed.

Rule 58 calls for entry of a separate judgment in al) cases,

even if it just executes a dismissal. Fed. R. Civ. P. 58(a).

12

other judgments and decrees.” Rufo v. Inmates of the

Suffolk Cty. Jatl, 502 U.S. 367, 378 (1992); see also

Pope v. United States, 323 U.S. 1, 12 (1944).

Regardless of the precise moment that mootness

occurs once a defendant has made an offer of complete

relief, the entry of such a judgment unquestionably

“satisflies],” and thus “moot[s],” the plaintiffs claim.

Genesis Healthcare, 133 S. Ct. at 1529 n.4.

II.CAMPBELL-EWALD IS ENTITLED TO

IMMUNITY

Neither Plaintiff nor the government tries to

defend the Ninth Circuit’s rule that the immunity

recognized by Yearsley v. W.A. Ross Construction Co.,

309 U.S. 18 (1940), is confined to “public works

projects.” Pet. App. 15a. Nor do they seriously

dispute that “[government] contractors might assert

qualified immunity for reasonable mistakes.” Resp. Br.

51; see U.S. Br. 27 n.9. Instead, they respond that

derivative immunity can only mean absolute immunity.

But that is incorrect. As courts have recognized,

“Yearsley immunity” is a form of “qualified immunity”

for those acting within the scope of a government

contract. Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d

641, 647 (6th Cir. 2015). And neither Plaintiff nor the

government provides any reason to deny Campbell-

Ewald immunity for what boils down to a mistake by a

sub-contractor hired with the Navy’s approval to

execute a recruiting campaign explicitly authorized and

closely supervised by the Navy. Pet. App. 33a.

A. All Agree The Ninth Circuit Erred

As the government acknowledges, the Ninth

Circuit based its immunity ruling on its view that

Yearsley is “not applicable” to this case because

13

Yearsley is imited to “public works projects.” U.S.

Br. 7 (quoting Pet. App. 15a); see Pet. Br. 41-43.

Neither Plaintiff nor the government defends that

arbitrary limit. This error alone warrants reversal.

B. Contractors, Just Like Individuals, Enjoy

Immunity For Acts Within The Scope Of

Their Duties

Neither Plaintiff nor the government offers a sound

reason for denying contractors like Campbell-Ewald

immunity for carrying out the government’s work.

1. Plaintiff and the government base their

opposition on the premise that derivative immunity is

“absolute” (Resp. Br. 13, 48-51) or “categorical” (U.S.

Br. 30, 31 n.12). Not true. As courts have recognized,

derivative immunity is qualified. See, e.g., Adkisson,

790 F.3d at 647 (“Yearsley immunity is, in our opinion,

closer in nature to qualified immunity for private

individuals under government contract ”Y, Al

Shimari v. CACI Int'l, Inc., 679 F.3d 205, 221 (4th Cir.

2012) (en banc) (categorizing derivative sovereign

immunity among “immunities that are not absolute”);

In re KBR, Inc., 925 F. Supp. 2d 752, 757 (D. Md. 2013)

(“derivative sovereign immunity is a qualified

immunity”), vacated on other grounds sub nom.

Metzgar v .KBR, Inc. (In re KBR, Inc.), 744 F.3d 326

(4th Cir. 2014), cert. denied, 135 S. Ct. 1153 (2015).®

5 Plaintiffs attempt to argue that Campbell-Ewald has

waived any claim to less-than-absolute immunity should be

rejected. As Plaintiff acknowledges, “throughout its brief”

Campbell-Ewald “invoke[s] qualified-immunity arguments.”

Resp. Br. 48. Campbell-Ewald did so as well in its certiorari

petition (Pet. 25-26) and in the Ninth Circuit. See, e.g., Pet.

14

Derivative immunity protects contractors for

actions taken on the government’s behalf, and under its

supervision, within the scope of their contracts: Pet.

Br. 37-38; KBR Amicus Br. 27-31. That is consistent

with qualified-immunity principles. See, e.g., Simons v.

Bellinger, 643 F.2d 774, 777 (D.C. Cir. 1980)

(government “officers ... are only entitled to qualified

immunity for acts performed within the scope of their

authority”). The official, or contractor, “acts beyond

the scope of his authority only if the injury occurred

during the performance of an act clearly established to

be outside of the iimits of that authority.” Better Gov't

Bureau, Inc. v. McGraw (In re Allen), 106 F.3d 582,

594 (4th Cir. 1997), cert. denied, 522 U.S. 1047 (1998).

Yearsley simply recognized what should be an

uncontroversial principle after Filarsky v. Delia, 132 S.

Ct. 1657 (2012)—private contractors who “perform the

same functions as government employees . should

receive immunity from suit when they perform these

functions.” Metzgar v. KBR, Inc. (In re KBR, Inc.), 744

F.3d 326, 344 (4th Cir. 2014) (citing Yearsley and

Filarsky), cert. denied, 135 S. Ct. 1153 (2015). That is

also consistent with Boyle preemption. Cf. Resp. Br.

51-02; U.S. Br. 30. Here, as in Boyle v. United

Technologies Corp., 487 U.S. 500, 505 (1988), protection

is not categorical but instead turns on a case-specific

inquiry into whether the contractor’s actions were

CA9 Br. 26-27, ECF No. 29 (relying on Filarsky v. Delia,

132 S. Ct. 1657 (2012)). And the Ninth Circuit recognized

Campbell-Ewald’s reliance on Filarsky and addressed the

argument. Pet. App. 18a-19a; cf. U.S. Br. 27 n.9.

15

within the scope of the contract. It is therefore not

surprising that Boyle cites Yearsley. Id. at 506.®

This does not mean that all immunity defenses are

“fungible.” Resp. Br. 48. But certainly they are

shaped by similar guiding principles and overlap in

important respects. Pet. Br. 38-41. What has become

known as “derivative sovereign immunity” adapts

those principles to government contractors.

2. Plaintiff also emphasizes that “government

agents or contractors” cannot be authorized to “violate

federal law,” suggesting that this case is about

sanctioning rogue entities to engage in “torture.”

Resp. Br. 43-44; see id. at 43-54. That is plainly wrong.

Immunity protects even government officials that

violate the Constitution, let alone statutes regulating

text messaging. Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982); Pet. Br. 37. That is not because such

officials have “permission” (Resp. Br. 50) to violate

federal law, but because immunity protects reasonable

mistakes by those acting within the scope of their

authority. Thus, in determining “whether a police

officer may assert qualified immunity against a Fourth

Amendment claim, [courts] do not ask whether he has

the right to engage in unconstitutional searches and

seizures, but whether engaging in searches and

6 The immunity recognized by Yearsley is not tied solely

to the government’s. In Yearsley itself the government did

not enjoy immunity from the underlying takings claim. And

Yearsley relied in part on The Paquete Habana, which held

that, “when the act of a public officer is authorized or has

been adopted by the sovereign power, whatever the

immunities of the sovereign, the agent thereafter cannot be

pursued.” 189 U.S. 453, 465 (1903) (emphasis added).

16

seizures in general is a part of his job-related powers

and responsibilities.” Holloman v. Harland, 370 F.3d

1252, 1266 (11th Cir. 2004). Similarly, immunity does

not turn on a post hoc inquiry into whether the illegal

act was explicitly sanctioned. Cf. Resp. Br. 55.

Immunity would be essentially meaningless—for

government employees as well as agents or

contractors—if it only existed when the government ex

ante (or ex post) explicitly authorizes the violation of

law. But that is not the inquiry. See Barr v. Matteo,

360 U.S. 564, 572 (1959) (“What is meant by saying that

the officer must be acting within his power cannot be

more than that the occasion must be such as would

have justified the act, if he had been using his power

for any of the purposes on whose account it was vested

in him”; otherwise, it would “defeat{] the whole

doctrine” (quoting Gregoire v. Biddle, 177 F.2d 579 (2d

Cir. 1949) (Hand, J.)).. Rather, it is settled that

government employees and agents do enjoy immunity

as long as they do not violate clearly established rights

in acting within the scope of their duties. See Pearson

v. Callahan, 555 U.S. 223, 231 (2009).

There is no reason why contractors acting on behalf

of the government should not enjoy that protection.

That is true even though their contracts invariably

include boiler-plate language saying that they shall

comply with federal law. JA 220. Government

employees agree to comply with federal law as well.

But that does not mean they are deprived of immunity

when their missteps happen to result in the violation of

federal law. Had Naval officers themselves executed

the recruitment campaign, there is no question that

they would be entitled to immunity if a wrong number

ended up on an opt-in list of hundreds of thousands of

17

recipients—-even if that mistake resulted in a violation

of federal faw. A contractor hired by the Navy to

undertake the same campaign, under the Navy’s direct

supervision, enjoys no less protection. ‘

3. The government acknowledges that its

employees can act with confidence that their mistakes

will not expose them to liability for violating federal

law, but claims that the companies it contracts with to

carry out the same functions on its behalf are out of

luck. U.S. Br. 23-25. That argument—a clear

departure from its prior positions—should be rejected.

The government argues (at 27-29) that Yearsley

had nothing to do with immunity but just held that the

government may “privilege” a contractor to take

actions the government itself could take. In other

words, according to the government, Yearsley applied

a derivative privilege doctrine, not a derivative

immunity doctrine. But that reading of Yearsley does

not hold up. For starters, as the government admits

(at 28), “Yearsley did not discuss the distinction

between ‘privileges’ and ‘immunities,” an odd omission,

to say the least, if the government were right.

Moreover, just a few years after Yearsley, this

Court stated that /Yearsley established that

“government contractors obtain certain immunity in

connection with work which they do pursuant to their

contractual undertaking with the United States.”

Brady v. Roosevelt S.S. Co., 317 U.S. 575, 583 (1943)

(emphasis added). Oops. The government’s only

7 The Westfall Act is not an “obstacle” (Resp. Br. 47)

because it has not been interpreted to preclude employee

immunity for the kind of mistakes at issue here.

18

response is to suggest (at 29 n.11) that this Court

meant to say “privilege,” not “immunity.” But then

why did Brady point to Yearsley’s “immunity” holding

immediately after teeing up whether respondent could

obtain “{ijmmunity from suit” (317 U.S. at 583)?

The government’s position represents an abrupt

about-face from its prior representations to this Court.

In Yearsley, for example, it said it was “obvious” that

“a government agent acting under authority validly

conferred by the government cannot be subjected to

suit on account thereof.” U.S. Br. 20, Yearsley, 309

U.S. 18 (1940) (No. 156), 1939 WL 48388 (emphasis

added). Likewise, just last term, the government

referred to Yearsley as a “derivative sovereign

immunity” case. See U.S. Br. 18-19, KBR, Inc. v.

Metzgar, No. 13-1241 (Dec. 16, 2014), 2014 WL 7185601.

The government tries to spin that now (U.S. Br. 30-31

n.12), but it points to nothing that would account for

the new doctrinal approach the government asks the

Court to embark on today—an analysis, as far as we

can tell, no lower court has ever applied before.

The government’s new position is simply an

attempt to protect its own employees (who it

acknowledges could not be sued for sending the texts

at issue, U.S. Br. 32), while leaving contractors

“holding the bag” (Filarsky, 132 S. Ct. at 1666) for the

same acts. The government is of course free to change

positions when it wishes. But it is the government’s

prior position, not its new one, that serves the Nation’s

interests in ensuring that the government is able to

attract and harness the “specialized knowledge or

expertise” (id. at 1665) of private individuals and, yes,

corporations too, to carry out vital government

objectives, like recruiting for the Nation’s defense.

19

4. This Court has made clear that “immunity

analysis rests on functional categories, not on the

status of the defendant.” Briscoe v. LaHue, 460 U.S.

325, 342 (1983). Affording immunity to contractors

doing the government’s work advances the same vital

public interests as granting immunity to individuals

doing the government’s work. Pet. Br. 38-41, 48-50; see

Metzgar v. KBR, Inc. (In re KBR, Inc.), 744 F.3d at

344 (“Yearsley furthers the same policy goals that the

Supreme Court emphasized in Filarsky.”); see also

Sherman v. Four Cty. Counseling Ctr., 987 F.2d 397,

403 n.4 (7th Cir. 1993) (finding “no persuasive reason to

distinguish between a private corporation and a private

individual” for purposes of qualified immunity):

DeVargas v. Mason & Hanger-Silas Mason Co., 844

F.2d 714, 723 (10th Cir. 1988) (same).

If the Navy had hired a private individual (or team

of individuals) to fulfill Campbell-Ewald’s role, that

individual or team would enjoy immunity on the facts

here, just as the Navy’s own employees would. See

Filarsky, 182 S. Ct. at 1665. The result cannot be

different simply because Campbell-Ewald is “a

corporation (as distinct from an individual).” U.S. Br.

27. As Justice Holmes explained in Sloan Shipyards

Corp. v. United States Shipping Board Emergency

Fleet Corp., 258 U.S. 549, 567 (1922), in evaluating

whether a government agent is entitled to immunity.

“jt cannot matter that the agent is a corporation rather

than a single man.” Yearsley, in which the defendant

was a corporation, illustrates the point.

Richardson v. McKnight, 521 U.S. 399, 409 (1997), is

not to the contrary. Cf. Resp. Br. 51 n.16. As this

Court has explained, Richardson was a “narrow[}”

decision that turned on its unique facts—the

20

management of a lengthy administrative task with

“limited direct supervision” by the government.

Filarsky, 132 S. Ct. at 1667 (citation omitted). Here,

the Navy was “in constant contact with Campbell-

Ewald on a daily basis,” and closely supervised every

deliverable. JA 46-47; see Pet. Br. 45-46; Pet. App. 33a.

Likewise, the government’s reliance (at 26) on

isolated language in Sloan Shipyards and Brady is

misplaced. Those cases involved the distinct question

whether the United States or an agent thereof was the

proper defendant in certain actions under the Suits in

Admiralty Act. See Sloan Shipyards, 258 U.S. at 564;

Brady, 317 U.S. at 577, 584. As for the question here,

Brady reaffirmed that “{ijt is, of course, true that

government contractors obtain certain immunity in

connection with work which they do pursuant to their

contractual undertaking with the United States.” 317

U.S. at 583 (emphasis added) (citing Yearsley).§

Ultimately, whatever label this Court chooses to

put on the doctrine, this case offers an opportunity for

the Court to clarify that contractors, no less than

individuals, are entitled to immunity when they are

acting on behalf of the government, under its close

supervision, and within the scope of their contract—

just as Campbell-Ewald was here. Pet. Br. 45-46.

8 To the extent the government suggests (at 26 (quoting

Sloan Shipyards, 258 U.S. at 567-68)) that these cases stand

for the broader principle that a government agent is always

“answerable for his acts,” that proposition is contradicted

by Yearsley too—not to mention Filarsky and other cases

recognizing that government agents enjoy immunity.

21

C. At A-Minimum, Campbell-Ewald Is Immune

From‘Vicarious Liability

This Court has long recognized that “[a] public

officer or agent is not responsible for the misfeasances

or positive wrongs, or for the nonfeasances, or

negligences, or omissions of duty, of the suwbagents or

servants or other persons properly employed by or

under him, in the discharge of lis official duties.”

Robertson v. Sichel, 127 U.S. 507, 515-16 (1888)

(emphases added); see Joseph Story, Commentaries on

the Law of Agency § 321 (4th ed. 1851) (same); Pet. Br.

46-47. The government—which has embraced this

principle in prior cases (¢.g., Pet. Br. 44, Ashcroft uv.

Iqbal, 556 U.S. 662 (2009) (No. 07-1015), 2008 WL

4063957)—ignores this principle here and pretends that

Campbell-Ewald, not MindMatics, prepared the opt-in

list and sent the text message at issue.®

Plaintiff argues (at 57 n.17) that “the TCPA

incorporates vicarious liability.” But that is beside the

point. This immunity operates against vicarious

liability—just like the immunity of the Naval officer

who authorized the text message campaign protects

him. Moreover, as Campbell-Ewald has explained (at

43-44), the TCPA, like all statutes, was enacted against

the backdrop of this immunity. Even if the TCPA

generally provides for vicarious liability, it also

incorporates the immunity against vicarious liability

9 There can be no question that Campbell-Ewald qualifies

as the Navy’s agent. Restatement (Third) of Agency § 1.01

(2006). Indeed, Plaintiffs complaint admits that Campbell-

Ewald was acting “on behalf of the U.S. Navy” (JA 19-20).

22

long recognized by this Court in the circumstances

here. Robertson, 127 U.S. at 515-16.

It is undeniable that (1) the contract authorized

Campbell-Ewald to hire subcontractors; (2) the Navy

approved Campbell-Ewald’s hiring of MindMatics to

prepare the opt-in list and send text messages to those

on the list, after Campbell-Ewald advised the Navy

that MindMatics would do that; and (3) MindMatics, not

Campbell-Ewald, compiled the opt-in list and sent the

text messages. Pet. Br. 5-6, 45-46; see JA 52, 182, 232-

34. T..ose facts not only establish that everything that

Campbell-Ewald did was authorized by the Navy, but

also entitle Campbell-Ewald to immunity.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted,

LAURA A. WYTSMA GREGORY G. GARRE

MEREDITH J. SILLER Counsel of Record

LOEB & LOEB LLP MELISSA ARBUS SHERRY

10100 Santa Monica Blvd. MICHAEL E. BERN

Suite 2200 NICOLE RIES Fox

Los Angeles, CA 90067 LATHAM & WATKINS LLP

(310) 282-2000 555 11th Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioner

SEPTEMBER 22, 2015