Category - "Text Messages"

Eastern District of Pennsylvania Court Holds Text Claim Satisfies Article III, Then Dismisses for Failure to Allege Enough Facts to Make Claim Plausible

A judge in the U.S. District Court for the Eastern District of Pennsylvania recently concluded that receipt of unwanted text messages in violation of the TCPA can constitute an injury-in-fact for purposes of Article III standing, but nevertheless dismissed the claim (without prejudice) pursuant to Rule 12(b)(6) based on its threadbare allegations.

In Camunas v. National Republican Senatorial Committee, the plaintiff (Rolando Camunas) alleged that he received no less than six unsolicited text messages from the defendant (NRSC) asking him to donate to a political party.  Civil Action No. 21-1005, 2021 WL 2144671, at *1 (E.D. Pa. May 26, 2021).  In his complaint, Camunas described the messages as “generic and obviously pre-written” and alleged that they were sent using an automatic telephone dialing system (ATDS), in violation of the TCPA.  Id.

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Fifth Circuit Finds Injury In Fact after Single Text Message

The Fifth Circuit recently held that a TCPA plaintiff who received a single text message suffered an Article III injury sufficient to support standing for his claim.  In Cranor v. 5 Star Nutrition, L.L.C., No. 19-51173, 2021 WL 2133433 (5th Cir. May 26, 2021), the plaintiff alleged that 5 Star Nutrition violated the Telephone Consumer Protection Act (TCPA) when it sent him several unsolicited advertising text messages.  The parties entered into a settlement agreement to avoid litigation.  After the settlement, 5 Star Nutrition sent one final promotional text message and the plaintiff filed suit, claiming that the single text message harmed him by invading his privacy, interfering with his right to his cellular phone and telephone line, and intruding upon his seclusion.

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District Court (Again) Holds Text Messages Insufficient to Confer Article III Standing

The Southern District of Florida recently dismissed a TCPA claim sua sponte for lack of subject matter jurisdiction, finding that the plaintiff had not alleged a concrete injury-in-fact.  See Perez v. Golden Trust Insurance, Inc., 470 F. Supp. 3d 1327 (S.D. Fla. 2020).

Perez alleged that Golden Trust had violated the TCPA when, without his consent, it used an ATDS to send two telemarketing text messages to his cell phone.  Golden Trust argued that the complaint should be dismissed because Perez did not properly allege the use of an ATDS.

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Texas District Courts Remain Divided on Standing for Single-Text TCPA Plaintiffs

In a pair of recent opinions, two U.S. district courts in different parts of Texas expressed inconsistent views on a topic we have been following closely: whether plaintiffs who receive just a single unwanted text message can establish a concrete injury for Article III standing.

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The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor

In a Public Notice issued July 28, 2020, the FCC confirmed that the TCPA’s safe harbor for calls or text messages made for “emergency purposes” applies to calls and text messages made by or on behalf of health care entities to communicate with individuals who have tested positive for COVID-19 to provide them with information regarding donating their plasma after recovery. As a result, in the FCC’s view, such calls or text messages during the ongoing pandemic do not require prior express consent to be lawful. Continue reading “The FCC Clarifies that Certain Communications to COVID-19 Patients Fall with TCPA’s “Emergency Purposes” Safe Harbor”

Court Applies the Seventh Circuit’s Gadelhak Decision and Grants Summary Judgment Against Certified Class

The Southern District of Indiana recently entered summary judgment against a certified class of TCPA plaintiffs because it concluded that defendants’ SoundBite platform did not qualify as an ATDS under the standard the Seventh Circuit recently established in Gadelhak v. AT&T Services, Inc., 950 F.3d 458, 460 (7th Cir. 2020).  Lanteri v. Credit Prot. Ass’n, L.P., No. 13-cv-01501, 2020 WL 3200076, *8 (S.D. Ind. June 15, 2020).  Our previous coverage of Gadelhak can be found here.  The Lanteri v. Credit Protection Association, L.P. decision illustrates that Gadelhak provides defendants facing TCPA claims in the Seventh Circuit with strong defenses to ATDS allegations.

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FCC Issues Declaratory Ruling Regarding Whether P2P Text Messaging Platforms Are Autodialers

On June 25, 2020, the FCC issued a Declaratory Ruling that granted a Petition that had been filed in 2018 by the P2P Alliance—a “coalition of providers and users of peer-to-peer (P2P) text messaging services.” The Petition had asked the FCC to clarify whether texts sent via its messaging platform were subject to the TCPA restrictions on automated dialing. The FCC did not decide if the Petitioner’s messaging platform is an autodialer, as the record was not sufficient to do so. But it did clarify in the abstract that, “if a texting platform actually requires a person to actively and affirmatively manually dial each recipient’s number and transmit each message one at a time and lacks the capacity to transmit more than one message without a human manually dialing each recipient’s number… then such platform would not be an ‘autodialer’ that is subject to the TCPA.”

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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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Taking Side on Circuit-Splitting Issue, Texas District Court Holds that Facebook Promotional Texts Were Not Sent Using ATDS

The Western District of Texas recently dismissed with prejudice a TCPA suit against Facebook brought by Colin Suttles, an individual who claimed he received thirty-two unsolicited texts from the company encouraging him to visit Facebook.com. Suttles v. Facebook, Inc., No. 1:18-CV-1004, at 2 (W.D. Tex. May 20, 2020).

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Second Circuit Joins Ninth Circuit in Adopting Expansive Interpretation of ATDS, But Carves Out Smartphones

In a decision released on April 7, the Second Circuit joined the Ninth Circuit in adopting an expansive interpretation of what qualifies as an Automatic Telephone Dialing System (ATDS), finding that online texting platforms that use human-generated lists and require a human to click “send” on a screen to initiate the texts falls within the statutory definition. Duran v. La Boom Disco, Inc., No. 19-600, 2020 WL 1682773, at *8–9 (2d Cir. Apr. 7, 2020). In an effort to respond to expected critics of their approach, the court explained its view of why “so-called smartphones” and other modern devices do not qualify as an ATDS despite having similar functionality to the online texting platforms at issue (the ability to store a list of numbers and to dial them by simply clicking “send”). Id. at *8 n.39. The decision deepens the divide between circuit courts on what qualifies as an ATDS.

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