SCOTUS Rules Against Campbell-Ewald: Good for Consumers, Bad for Agencies

By Patrick Coffee 

Today In Big News We Didn’t Cover Yesterday due to all the unrelated Super Bowl hoopla, the Notorious R.B.G. and five of her fellow Supreme Court justices ruled against Campbell Ewald and Navy in the class-action suit filed by one Jose Gomez, who got an unwanted and unsolicited text from the client way back in 2006 (he was 40 at the time and nowhere near the target audience). Gomez was one of more than 100,000 people who C-E partner Mindmatics targeted in the recruiting campaign.

Campbell and Navy tried to cancel out the class-action suit by offering to settle with Mr. Gomez. The defense essentially argued that the very fact that he had been offered a settlement and rejected it by not responding rendered his class-action status moot by separating him from the other people making the same complaint against the same party.

As HuffPo puts it, such cases are “widely viewed as attempts by business interests to shut the courthouse door to consumers and everyday plaintiffs” by singling out the original complainant and arguing that he/she cannot file as a group after the offending party tries to make things right by doing the bare minimum.


SCOTUS strongly disagreed. Here’s the full decision, which came as something of a surprise to many observers.

Specifically, Gomez argued that Campbell and Navy violated the Telephone Consumer Protection Act, which restricts automated telemarketing. (Thank fucking god.) Legally, that law allows each person who receives such unprompted messages to get a total of $1,500. Campbell offered $1,503, thereby technically satisfying its own responsibilities under that law.

Ruth Bader Ginsburg, however, understood what the defendants were really trying to do: avoid the whole mess by placating the person who started it. “An unaccepted settlement offer has no force,” she wrote.

Chief Justice John Roberts agreed with the defense, arguing that because the legally required total had been made available to Gomez, his complaint did not concern a “real dispute”–only his “entitlement to relief already there for the taking.”

In other words, he got what he was entitled to under the law, so STFU.

Ginsburg and the majority wrote that we can’t leap to those conclusions, because they would rob every party of his/her individual right to bring specific complaints against the company behind the messages as part of larger group.

This would seem to be very good news for future class-action suits filed against all sorts of businesses. Some aren’t so sure, though.

For example, Reuters told us yesterday that because Gomez did not specifically reject a check from Campbell Ewald, future defendants could avoid this sort of case by actually depositing the total in an account dedicated to the plaintiff. In effect, rulings could hold that Gomez doesn’t have the right to reject the payment once it leaves Campbell Ewald with his name on it because it technically belongs to him whether he wants to accept it and go away or not. One can’t help but conclude that Justice Roberts would love nothing more than to give businesses greater power to destroy such suits, because he basically told them how to go about it in his written opinion.

That’s the legal side of things. On the ad side, this case shows us how bad targeting tools were in 2006 and demonstrates the single greatest challenge in satisfying clients’ demands that campaigns reach the right people at the right times: consumers really hate that shit. This is why ad blockers are so popular, but you already knew that.

Big caveat: the conclusion doesn’t apply to all people. Some consumers really are open to reading your marketing messages and maybe even using them to drive eventual purchasing decisions!

[If you can stick with me for a first-person aside, I once saw an ad for epilepsy medication on Hulu. As someone who has epilepsy, it made me sit up and think, “that is the most relevant ad I have seen in the last year, at least.” But the ad wasn’t targeted to me. The fact that I saw it was pure coincidence.]

We have a long way to go in terms of showing consumers only the things that they actually WANT to see. The fact that Netflix keeps telling us that we would LOVE Family Guy reinforces the fact that targeting is really hard no matter how much data you have to work with.

In the meantime, advertisers have to accept the fact that a consumers’ sense of annoyance in being “fed” things they didn’t tacitly agree to see–at least in cases like this one–constitutes a legitimate legal complaint.

Despite our headline, the decision could be spun as a good thing for ad agencies which now have to try even harder to make sure their messages land in the right place. Somehow we doubt most will see it that way.