The U.S. District Court for the Southern District of Florida recently held that a defendant’s pre-suit proffer of a settlement check and a letter promising not to violate the TCPA in the future did not moot the plaintiff’s claims because the plaintiff did not accept the offer. Edelsberg v. Brea Fin. Gp., LLC, No. 18-cv-62119, 2019 WL 1302828 (S.D. Fla. Eb. 26, 2019). The case highlights the ongoing litigation regarding Article III standing in the wake of the U.S. Supreme Court’s decision in Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016). Continue reading
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 »
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 »
As we have frequently discussed, Article III standing is a recurring issue in TCPA cases. The Southern District of Florida recently added to the precedent in this area when it denied a plaintiff’s motion to remand, holding that defendants did not need to concede plaintiff’s Article III standing in their notice of removal. Gonzalez v. TCR Sports Broadcasting Holding, LLP, No. 18-cv-20048, 2018 WL 4292018 (S.D. Fla. Sept. 10, 2018). Continue reading »
On April 18, 2018, a group of fifteen Democratic senators addressed a letter to FCC Chairman Pai related to the D.C. Circuit’s recent decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018). The letter notes that the ACA decision “struck down portions of a 2015 Federal Communications Commission (FCC) Omnibus Declaratory Ruling and Order limiting the definition of automatic telephone dialing systems (auto dialers), which are technologies that can be used to rapidly call and text large groups of consumers,” and expresses concern that “[w]hile the Court maintained the right to revoke consent, the Court’s ruling could be interpreted to suggest that callers could limit consumers’ method to revoke consent to receive robocalls and robotexts through provisions buried in contracts or service agreements,” which would “upend the meaning and the goals of the TCPA.” The senators ask Chairman Pai and the FCC to take the following actions: Continue reading »
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 »
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 »
A recent ruling from the Eastern District of Missouri provides encouraging news for app developers who may be sued under the TCPA for messages sent by users of their app. The court declined to exercise personal jurisdiction over the defendant, the photo sharing app developer Everalbum, Inc., because the text messages sent to plaintiffs in the forum state were sent by users of the app, and Everalbum itself directed no messages into the forum. See Figueroa v. Everalbum, Inc., No. 17-1393, 2017 WL 4574797 (E.D. Mo. Oct. 12, 2017). The decision is a favorable one for software companies whose users may initiate SMS communications with persons throughout the country, thus implicating the TCPA.
As businesses increasingly elect to use text messaging to communicate with consumers, they should be mindful that text messages are a frequent target of TCPA claims. FCC regulations require different degrees of consent depending on whether communications are commercial or informational; whereas businesses must have only “prior express consent” for purely informational texts, they must have “prior express written consent” for texts that include an advertisement or constitute telemarketing. (Certain other texts, for example those sent for an emergency purpose, are exempt from those requirements.) That begs the question: what qualifies as advertising or telemarketing such that the higher degree of consent is required? Continue reading »
As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading »