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.
Matthew J. Adler
Articles by Matthew J. Adler:
District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing
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 “District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing”
D.C. Circuit’s Guidance Still Needed After Recent Decisions on TCPA Pleading Requirements
For years, courts, litigants, and commentators have grappled with the TCPA’s definition of “automatic telephone dialing system” (“ATDS”). As a result of the FCC’s July 2015 Declaratory Ruling and Order, the debate has focused on the question of capacity, i.e., whether a device must have the present capacity to “(a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers” or—as the FCC found—if the potential capacity is sufficient. Continue reading “D.C. Circuit’s Guidance Still Needed After Recent Decisions on TCPA Pleading Requirements”
Are Insurance Renewal Notifications Telemarketing? Maybe.
As discussed here, the Central District of California recently granted summary judgment in favor of an insurance company after finding that a prerecorded call to the insured’s mobile phone, which reminded her to review her health plan options for the following year, was not telemarketing and therefore did not require “prior express written consent.” See Smith v. Blue Shield of Cal. Life & Health Ins. Co., No. SACV 16-00108-CJC-KES (C.D. Cal. Jan. 13, 2017).
But just a few weeks ago, a different judge in the Central District reached the opposite conclusion in a similar case, and denied the defendant’s motion to dismiss. See Flores v. Access Ins. Co., No. 2:15-cv-02883-CAS-AGR (C.D. Cal. Mar. 13, 2017) (available here). These two decisions illustrate how courts continue to grapple with the distinction between “telemarketing” and “informational” calls. Continue reading “Are Insurance Renewal Notifications Telemarketing? Maybe.”
Freedom of Contract Appears Alive and Well in the Third Circuit
Two federal courts in the Third Circuit recently compelled individual arbitration in TCPA actions. See Raynor v. Verizon Wireless, No. 15-5914, 2016 U.S. Dist. LEXIS 54678 (D.N.J. Apr. 25, 2016); Herndon v. Green Tree Serv. LLC, No. 15-1202, 2016 U.S. Dist. LEXIS 53937 (M.D. Pa. Apr. 22, 2016). Issued just a few days apart in cases against a telecommunications provider and a mortgage broker, these decisions serve as a helpful reminder to businesses to consider including arbitration clauses in their consumer contracts—and to explore their applicability when facing TCPA litigation. Continue reading “Freedom of Contract Appears Alive and Well in the Third Circuit”
Michigan Federal Court Dismisses TCPA Complaint and Rejects Plaintiff’s Conclusory ATDS Allegations
The U.S. District Court for the Eastern District of Michigan recently dismissed a TCPA complaint upon finding the plaintiff’s factual allegations insufficient to satisfy the pleading standards imposed by both Rule 8(a) and the Supreme Court’s opinions in Twombly and Iqbal. The Court’s order provides useful guidance concerning the oft-litigated issue of whether a complaint contains sufficient facts to plausibly allege a defendant’s use of an ATDS.
Illinois Federal Court Follows Eleventh Circuit’s Broad Definition of “Sender” in Blast Fax Case
Through prior posts (see here, here, and here), we have monitored the FCC’s somewhat perplexing distinction between calls and faxes in the context of analyzing direct and vicarious liability under the TCPA. Just two months ago, the FCC’s position, as originally set forth in a letter brief, was adopted by the Eleventh Circuit in Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (“Sarris”). The Sarris court held that “a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly” under the TCPA.
Courts Confirm Importance Of Human Intervention
A critical issue under the TCPA is the extent to which the statute applies to mobile text messaging platforms. As evident from its title, Congress intended that the TCPA would protect consumers from unsolicited telephone calls, as placed through automated telephone dialing systems (“ATDS”). As early as 2003, the FCC decided that text messages are “calls” under the TCPA, but has not yet addressed the corollary issue of when and whether a text messaging platform might be considered an ATDS.
Continue reading “Courts Confirm Importance Of Human Intervention”
New Jersey Federal Court Rejects FCC’s Dish Network Ruling in Blast Fax Case, Relies on FCC’s Letter Brief in Sarris
As we previously reported, on July 17, 2014, the FCC filed a letter brief in Palm Beach Golf Center-Boca, Inc. v. Sarris, No. 13-14013 (11th Cir.) (“Sarris”), in which it took the position that entities can be held directly liable under the TCPA whenever their products or services are advertised in an unsolicited fax—even if they did not actually send the fax, and even if they did not know the fax was going to be sent. The FCC’s letter brief stood in marked contrast to its decision last year in In re Joint Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574 (2013) (“Dish Network”), where the FCC had limited direct liability to only “telemarketers” that “initiate” calls, and otherwise applied agency principles to determine whether “sellers” might be vicariously liable for calls made on their behalf. As readers may recall, the FCC’s letter brief does not articulate a policy reason why a “seller” in the voice call context should receive more protection than an entity whose goods and services are promoted through a fax advertisement. But whatever the merits of the letter brief, it has yet to be cited by the Eleventh Circuit (which has heard argument but not yet issued an opinion) or, at least for the past few months, any other court.
Ninth Circuit Addresses TCPA Text Message Claims
In Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), a panel of the Ninth Circuit Court of Appeals addressed several recurring issues in TCPA litigation, including: the efficacy of Rule 68 offers to moot putative class actions; potential First Amendment defenses; and vicarious liability.
Continue reading “Ninth Circuit Addresses TCPA Text Message Claims”