Court Dismisses Claims that Shopping Platform was Directly or Vicariously Liable for Retailer’s Texts

The Northern District of California recently granted a motion to dismiss, finding the plaintiff failed to plausibly allege that e-commerce platform Shopify was directly or vicariously liable for the alleged TCPA violations of a retailer using the platform. Sheski v. Shopify (USA) Inc., No. 19-CV-06858, 2020 WL 2474421 (N.D. Cal. May 13, 2020).

The plaintiff filed a putative class action complaint alleging, among other claims, that the defendants Shopify (USA) Inc. and Shopify Inc. (collectively, “Shopify”) violated the TCPA due to Shopify’s “unlawful practice of making, facilitating and participating in an unauthorized text message marketing campaign en masse to consumers’ cellular telephones.”

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District Court Sharpens Focus on Injury-in-Fact Requirement in Text Messaging Cases

The Southern District of Florida recently dismissed a TCPA putative class action for lack of standing, finding that the plaintiff could not show he suffered a concrete injury-in-fact.  Reinforcing Eleventh Circuit precedent, the court held both that the number and infrequency of the text messages at issue was insufficient to support plaintiff’s loss of privacy, waste of time, and intrusion upon seclusion allegations and that he failed to show by a preponderance of the evidence that the texts depleted his cell phone battery or negatively impacted his data and messaging plan. Eldridge v. Pet Supermarket Inc., No. 18-22531, 2020 WL 1475094 (S.D. Fla. Mar. 10, 2020).

In Eldridge, plaintiff alleged that defendant used an ATDS to send him seven advertising and telemarketing text messages without his consent, in violation of the TCPA. Plaintiff received the first two messages after he texted defendant’s number in order to enter a raffle for free pet food. They confirmed plaintiff’s entry in the raffle, provided a link to the raffle’s rules, and stated that plaintiff consented to receive automated text messages from defendant. The next five messages, sent over approximately three months, contained coupon codes and information regarding upcoming pet adoption events. Plaintiff alleged that all seven text messages “‘invaded [his] privacy, intruded upon his seclusion and solitude, wasted his time by requiring him to open and read the messages, depleted his cellular telephone battery, and caused him to incur a usage allocation deduction to his text messaging or data plan.’” Id. at *2.

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Central District of California Grants Motion for Summary Judgment After Finding That Plaintiff Failed to Revoke Prior Express Consent To Be Called

The Central District of California recently granted summary judgment to the defendant on a TCPA claim in Mendoza v. Allied Interstate LLC, SACV 17-885 JVS (KESx), 2019 WL 5616961 (C.D. Cal. Oct. 22, 2019), finding that the plaintiff had not sufficiently proven revocation of consent to be called about two credit card accounts when he had revoked consent to be called about two other accounts serviced by the same card issuer.

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Court Applies Wrong Lyrical Analysis—But Right Legal Analysis—In Setting High Bar to Recovering Treble Damages in Reassigned Number Case

The U.S. District Court for the Southern District of Florida recently entered summary judgment on the issue of treble damages, finding that there was no genuine issue of material fact regarding whether the defendant had called plaintiff’s cell phone number “willfully or knowingly.” Floyd v. Sallie Mae, Inc., No. 12-22649, 2018 WL 7144330 (S.D. Fla. Dec. 27, 2018). The case highlights the facts a defendant can develop to avoid a treble damages award, particularly in a case involving a reassigned number. Continue reading   »

One Court Declines to Rule that Pharmacy Prescription Calls are Per Se Protected by the Emergency Purposes Exception, Rejecting Cases Holding Otherwise

Last week, in Smith v. Rite Aid Corporation, 2018 WL 5828693 (W.D.N.Y. Nov. 7, 2018), a court rejected the argument – supported by previous cases – that pharmacy prescription reminder calls categorically come within the TCPA’s statutory emergency purposes exception. This decision creates uncertainty for all pharmacies and may chill their ability to provide important health care notifications to their patients. Continue reading   »

Class Decertified: Wireless Provider’s Data Demonstrates Individualized Issues of Consent

The United States District Court for the Northern District of Illinois recently decertified a class after the defendant, Yahoo! Inc., submitted new evidence showing that tens of thousands of putative class members may have consented to receive the text messages at issue. See Johnson v. Yahoo! Inc., No. 14-2028 (N.D. Ill. Feb. 13, 2018).

The dispute relates to the Yahoo! Messenger service, which allows Yahoo! users to send text messages to cell phones. After a user would send an initial text message to a specific cell phone number, Yahoo! would send an additional “Welcome Message” text message to that number: “A Yahoo! user has sent you a message. Reply to that SMS to respond. Reply INFO to this SMS for help or go to y.ahoo.it/imsms.” The plaintiff alleges that these Welcome Messages violate the TCPA based on a theory that Yahoo! did not have the “prior express consent” of the “called party” (the third party to whom the Yahoo! user had sent the original text message). Continue reading   »

Seventh Circuit Rules that Rule 67 Does Not Provide an Avenue to Mootness

After the Supreme Court held in Campbell-Ewald v. Gomez that merely offering to make a payment will not moot a claim, we predicted that defendants would explore various procedural mechanisms for arguing that actually making a payment will moot a plaintiff’s claim. Indeed, although the Supreme Court did not reach the issue, its decision strongly suggested that plaintiffs who have received complete relief—as opposed a mere offer of complete relief—no longer have live cases or controversies as required by Article III. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (Feb. 9, 2016) (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). This week, however, a panel of the United States Court of Appeals for the Seventh Circuit held that not even tendering funds into a court-monitored interest-bearing account is enough to moot a claim. See Fulton Dental, LLC v. Bisco, Inc., No. 16-3574 (June 20, 2017). What, if anything, would be enough it did not say. Continue reading   »

Court Clarifies Free Offers and Dual Purpose Calls

A recent decision from the Southern District of Alabama provides more clarity as to the treatment of “dual purpose” telephone calls to wireless numbers that offer free goods and services. The Federal Communications Commission already has explained that “offers for free goods and services that are part of an overall marketing campaign to sell property, goods, or services” are advertisements under the TCPA and FCC regulations. The FCC also has explained that informational calls that are motivated in part by the intent to sell property, goods, or services are “in most instances” advertisements under the TCPA. This is true whether call recipients are encouraged to purchase, rent, or invest in property, goods, or services during the call or in the future (“such as in response to a message that provides a toll-free number”). Report and Order, In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶¶ 139-142 (2003).

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