On Tuesday last week, we noted that as we approach the November 2018 midterm elections, we expect to see an uptick in the number of TCPA lawsuits filed against campaigns, candidates, and committees. On cue, on Friday two new such putative class action TCPA lawsuits were filed: Norton v. 1863 PAC, Ltd., No. 18cv173 (N.D. W. Va. Oct. 19, 2018) and Syed v. Beto for Texas, No. 18cv2791 (N.D. Tex. Oct. 19, 2018).
The Norton complaint relates to the campaign of Riley Moore (R), who is running for reelection to the West Virginia House of Delegates. According to the complaint (which is threadbare and conclusory even by TCPA complaint standards), two unidentified John Doe defendants working for 1863 PAC, Ltd. conspired with an unidentified ABC Company to “cause an unsolicited text message and graphic advertisement to be transmitted to plaintiff’s cellular phone and other potential voters’ cellular phones” to promote Moore’s candidacy. The complaint does not identify when precisely the text was received; identify the number from which the text was sent or the number to which it was directed; provide a screenshot, summary, or excerpt of the text; or elaborate on whether it was “graphic” as in it included an image or “graphic” as in it was explicit or disturbing.
The Syed complaint relates to the campaign of Beto O’Rourke (D), who is running for election to the United States Senate in Texas. According to the complaint (which is almost as threadbare and conclusory as the Norton complaint), this year the Plaintiff received at least nine text messages on two mobile phones (973-XXX-5508 and 201-XXX-6609). Like the Norton complaint, however, the Syed complaint does not identify when precisely the text was received; identify the number from which the text was sent; or provide a screenshot, summary, or excerpt of the text. The complaint does, however, invoke the Ninth Circuit’s recent decision in Marks v. Crunch San Diego for the proposition that the technology used to send the texts was an ATDS because “All text messages were pre-recorded with similar to identical formatting” and “None of the phone numbers had the ability to receive a return phone call” which “points to the use of an ATDS.”