The Northern District of California recently granted summary judgment dismissing a plaintiff’s TCPA claim based on text messages that confirmed plaintiff’s hotel reservations and encouraged him to download defendant’s app. Phan v. Agoda Co. Pte. Ltd., No. 16-CV-07243-BLF, 2018 WL 6591800 (N.D. Cal. Dec. 13, 2018). The case turned on whether the texts constituted advertising or telemarketing—thus requiring plaintiff’s prior express written consent. After considering “[b]oth the context and the content of the messages,” the court held that the texts were neither advertising nor telemarketing, and granted summary judgment in defendant’s favor because it was undisputed that plaintiff had given the requisite consent for informational or transactional texts. Continue reading
Author Archives: Matthew J. Fedor
Second Circuit Follows Seventh Circuit, Finds that Rule 67 Tender Does Not Moot Claims
Nearly three years ago, in Campbell-Ewald Co. v. Gomez, the Supreme Court held that claims are not mooted by unaccepted offers of complete relief under Rule 68 because they create neither an “obligation” to provide nor an “entitlement” to receive any relief. But the Court expressly left open the possibility that depositing the full amount of a plaintiff’s individual claim in an account payable to the plaintiff might be enough. Continue reading
Court Dismisses Case for Failure to Plausibly Allege That Text Messages Constituted Telemarketing
The Southern District of New York recently granted a motion to dismiss in a putative TCPA class action because plaintiff failed to plausibly allege that the texts at issue constituted telemarketing or contained advertising material, thus requiring plaintiff’s prior express written consent. The decision highlights the importance of pleading the specific content of the communication at issue in a TCPA case, which directly impacts the type of consent that is required. Continue reading
Court Holds Web-Based Texting Platform is Not an ATDS Because of Need for Human Intervention
A federal district court in the Southern District of Florida joined a list of courts that have found a web-based text messaging platform to fall outside the purview of the TCPA due to the amount of human intervention required to send a text message. In Ramos v. Hopele of Fort Lauderdale, LLC, et al., the plaintiff brought a putative class action alleging that the defendants violated the TCPA by sending her unsolicited text messages. The parties each moved for summary judgment. The plaintiff argued that the texting platform was, as a matter of law, an ATDS. The defendants argued that the web-based texting platform at issue did not meet the statutory definition of an ATDS because it cannot send text messages without human intervention. Continue reading
Texas Federal Court Compels Arbitration of TCPA Claims, Grants Motion of Nonsignatory to Agreement
The U.S. District Court for the Northern District of Texas recently granted a defendant debt collection agency’s motion to compel arbitration in a TCPA case. See Bow v. Ad Astra Recovery Servs., Inc., No. 18-0510-G, 2018 WL 3455510 (N.D. Tex. July 18, 2018) (available here). In doing so, the court enforced an arbitration agreement that the debt collection agency had never signed, on the ground that the agreement expressly referenced the agency as an “affiliate” of the two lenders that had signed the agreement. The court’s decision provides helpful guidance for enforcing arbitration agreements, particularly in the context of a loan agreement that may lead to debt collection efforts—and potential TCPA exposure. Continue reading
Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory
The Ninth Circuit recently affirmed summary judgment for five defendants—three payday lenders and two lead-generation vendors—in a certified class action where it was undisputed that the text message at issue violated the TCPA. See Kristensen v. Credit Payment Servs. Inc., 879 F.3d 1010 (9th Cir. 2018). Rejecting Plaintiff’s ratification theory, the court held that the defendants were not vicariously liable for the actions of a non-party “publisher,” AC Referral—the entity that initiated the text. The Ninth Circuit’s opinion provides useful guidance as to scope of TCPA liability for all players involved in an SMS campaign, particularly those that do not actually press “send.” Continue reading
Allegedly Deficient Opt-Out Language in Fax Did Not Give Rise to a Concrete Injury Under Spokeo
We’ve previously reported on the D.C. Circuit’s March 31 decision, which held that “the FCC’s 2006 Solicited Fax Rule is . . . unlawful to the extent that it requires opt-out notices on solicited faxes.” Bais Yaakov of Spring Valley v. FCC, No. 14-1234, Slip. Op. at 4 (D.C. Cir. 2017). And as we recently discussed, the plaintiff intervenors in that case have sought a rehearing en banc. Given the significance of the D.C. Circuit’s decision in TCPA class actions, it would not be a surprise if the en banc petition is just the beginning of the plaintiffs’ bar’s efforts to attack the D.C. Circuit’s decision. While the D.C. Circuit’s ruling is welcome news to defendants in TCPA actions, the Eastern District of Missouri recently dealt another blow to the plaintiffs’ bar. In that regard, shortly before the D.C. Circuit’s ruling, a district court held that an allegedly deficient opt-out notice in a fax the plaintiff invited did not give rise to a concrete injury under Spokeo, and dismissed the case for lack of Article III standing. St. Louis Heart Ctr., Inc. v. Nomax, Inc., No. 4:15-CV-517 RLW, 2017 U,S., Dist, LEXIS 39411 (E.D. Mo. Mar. 20, 2017). Continue reading
Seventh Circuit Rejects Political Speech Challenge to Indiana’s Anti-Robocall Statute
We’ve previously discussed First Amendment challenges to the TCPA and state law counterparts in the context of political speech here, here, and here. Recently, the Seventh Circuit rejected a nonprofit group’s argument that Indiana’s anti-robocall statute violated the First Amendment because it did not exempt robocalls involving political speech. Patriotic Veterans, Inc. v. Zoller, No. 16-2059, 2017 U.S.App. LEXIS 47 (Jan. 3, 2017). Continue reading
Ninth Circuit Confirms That Providing A Business With Phone Number Constitutes Express Consent To Be Called Under The TCPA
In a recent decision, the Ninth Circuit held that the named plaintiff in a putative TCPA class action expressly consented to receive a text message when she provided an airline with her phone number, even though she claimed she only provided her number because she thought it was required to purchase airline tickets and had no intention of consenting to be contacted. Baird v. Sabre, Inc., No. 14-55293, 2016 WL 424778, at *1 (9th Cir. Feb. 3, 2016).
When Shaya Baird booked flights online, she was prompted to provide contact information and was informed that “‘[a]t least one phone number is required.’” Baird v. Sabre, Inc., 995 F. Supp. 2d 1100, 1101 (C.D. Cal. 2014). Three weeks later, Sabre, which was contracted by Hawaiian Airlines to provide traveler notification services, sent Baird a text message asking if she wanted to receive flight notifications. Baird did not respond and Sabre sent no other messages. Baird subsequently filed a putative class action. Continue reading
Supreme Court Rules that Unaccepted Offer Does Not Moot a Claim But Leaves Door Open to Mooting Through Actual Payment
On January 20, 2016, the Supreme Court issued a long-awaited ruling in Campbell-Ewald Co. v. Gomez. Although their reasoning differed, six of the Justices held that an unaccepted offer of complete relief does not in and of itself deprive a court of Article III jurisdiction by mooting a plaintiff’s claim. Continue reading