District Court (Ill.) Says TCPA Plaintiff Pleaded Enough “Other Facts” Regarding “Use” Of an ATDS to Get Past the Pleadings Stage

In Izsak v. Draftkings, Inc., 2016 WL 3227299, at *3-5 (N.D.Ill., 2016), Judge Wood found that a TCPA Plaintiff pleaded enough to get past the pleadings stage.

This Court agrees with the view that where a fact—here, use of an ATDS—is itself an element of the claim, “it is not sufficient to recite that fact verbatim without other supporting details.” Ananthapadmanabhan, 2015 WL 8780579, at *4. Rather, a plaintiff must plead additional, independent facts that “suggest beyond the speculative level that Defendant actually used an ATDS and is liable under the TCPA.” Oliver v. DirecTV, LLC, No. 14-cv-7794, 2015 WL 1727251, at *3 (N.D. Ill. Apr. 13, 2015) (internal quotation marks and citations omitted). While a TCPA plaintiff should not be expected to plead details regarding the technical functionality of the alleged ATDS, the complaint must include at least some facts to support the conclusion that an ATDS was used. For example, a plaintiff could describe the promotional content or the generic, impersonal nature of the text message allegedly sent using an ATDS. A plaintiff might also allege that identical messages were sent to many potential customers at the same time. See, e.g., Sojka v. DirectBuy, Inc., 35 F. Supp. 3d 996, 1003 (N.D. Ill. 2014); Strickler v. Bijora, Inc., No. 11 CV 3468, 2012 WL 5386089, at *2 (N.D. Ill. Oct. 30, 2012); Abbas, 2009 WL 4884471, at *3.  Here, Izsak parrots the language of the TCPA, alleging that DraftKings sent the text messages at issue using equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator and to dial such numbers. But he then goes on to provide a screenshot of the text message he received and also to allege that DraftKings sent the same, or substantially the same, message to thousands of wireless telephone numbers. In addition, Izsak further alleges that, upon calling the number from which he received the text message, he heard the following prerecorded message: “Hi, this automated message [is] from DraftKings. Please refer to the original message you received from this number.” Do these additional factual allegations plausibly suggest that DraftKings used an ATDS to send the September 1, 2014 text message? The Court concludes that they do.  DraftKings argues that, far from supporting the assertion that an ATDS was used, the allegations in Izsak’s complaint actually contradict that assertion. Specifically, DraftKings contends that the text message shows on its face that one of Izsak’s friends or acquaintances with the email address “djjg11 @yahoo.com” sent the message using DraftKings’s in-phone application, inviting Izsak to play fantasy sports. While that may prove to be the case, “simply presenting an alternative explanation for the facts alleged in the complaint is insufficient to demonstrate that the complaint fails to plausibly suggest a right to relief.” Astor Prof’l Search, LLC v. MegaPath Corp., No.1:12-cv-02313, 2013 WL 1283810, at *5 (N.D. Ill. Mar. 27, 2013). See also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“ ‘Plausibility’ in [the context of Twombly and Iqbal] does not imply that the district court should decide whose version to believe, or which version is more likely than not…it is not necessary to stack up inferences side by side and allow the case to go forward only if the plaintiff’s inferences seem more compelling than the opposing inferences.”). And while certain of the allegations highlighted by DraftKings potentially undercut Izsak’s claim that an ATDS was used, the complaint includes other allegations that cut the other way. Further, the screenshot displaying the September 1, 2014 text message, attached as an exhibit to the complaint, does not “incontrovertibly contradict[ ] the allegations in the complaint.” Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013) (internal citation omitted) (emphasis added).  While Izsak received only one text message, cf. Smith v. Royal Bahamas Cruise Line, No. 14-cv-03462, 2016 WL 232425 (N.D. Ill. Jan. 20, 2016) (several automated calls) and Sojka, 35 F. Supp. 3d 996 (multiple identical text messages), his allegation that the same message was sent en masse to thousands of wireless telephone numbers, which must be taken as true, points toward use of an ATDS. See Abbas, 2009 WL 4884471, at *3 (plaintiff’s allegation that defendant sent mass transmissions of wireless spam to potential customers, together with other allegations, allowed the court to reasonably infer that an ATDS was used); Sojka, 35 F. Supp. 3d at 1003 (the allegation that members of the putative class received the same messages, coupled with other allegations, led to the reasonable inference that the messages were sent using an ATDS). And although DraftKings takes the position that the contents of the September 1, 2014 text message demonstrate that it was personally sent by an individual, a plausible alternative view is that the generic nature of the message indicates it was actually sent from an institutional sender for marketing purposes and only crafted to appear personalized. See Abbas, 2009 WL 4884471, at *3.  Also supporting the inference that an ATDS was used is Izsak’s allegation that, upon calling the number from which he received the text message, he heard an automated message from DraftKings. See, e.g., Smith, 2016 WL 232425, at *4; Vance v. Bureau of Collection Recovery LLC, No. 10-cv-06324, 2011 WL 881550, at *3 (N.D. Ill. Mar. 11, 2011) (“even if Plaintiff were required to state the grounds for her suspicions, Plaintiff does just that—she alleges that she suspected that the phone calls that she received were automated because she heard a prerecorded voice when she answered.”) (internal quotation marks and citation omitted). Cf. Johansen, 2012 WL 6590551, at *3 (dismissing a TCPA claim where the plaintiff stated only that the defendant left prerecorded messages on his cell phone using an ATDS without providing any additional information about the messages received). Of course, the alleged TCPA violation here is the text message Izsak received, not the call during which he heard the prerecorded message. But the circumstances suggest that the equipment used to send the text message and the equipment that “answered” the call are one in the same, or are at least connected. This, in turn, suggests that such equipment had the capacity to store or produce and dial telephone numbers randomly or sequentially. How the equipment worked in practice and whether human intervention was required to send the September 1, 2014 text message are factual matters to be explored during discovery.  On the matter of human intervention, DraftKings argues that the text message itself, consisting of what it characterizes as a personalized message, illustrates that it required direct human involvement—presumably by the user of the email address “djjll@yahoo.com” and the internet handle “GERONIMO11.” As DraftKings argues: “[] person has to voluntarily sign up to play DraftKings; that person must subsequently provide his or her own email address and create a username; then that person must affirmatively identify a contact they want to invite to play with them; the person must provide a phone number to reach the invitee by text; and then the person must affirmatively send the invitation to play by text using the DraftKings mobile application.” (Def. Memo in Support of Mot. to Dismiss at 7, Dkt. No. 17.) In other words, “human intervention was present at every step.” (Id.) Thus, according to DraftKings, the contents of the text message contradict Izsak’s conclusory allegation that it was sent without any human intervention, which refutes his assertion that an ATDS was used and defeats his TCPA claim. But, as stated above, simply presenting the Court with an alternative version of events does not establish that Izsak has failed to state a claim. Just as Izsak’s allegations plausibly suggest that an ATDS was used, those same allegations—coupled with his assertion that DraftKings transmitted the message without human intervention—are sufficient to allow the Court to infer reasonably there was no human involvement. Just as discovery should reveal how DraftKings’s equipment functions in practice, so too should discovery illuminate whether individual action prompted the text message at issue.  DraftKings is correct that a number of district courts (although none in this Circuit) have held that a text message sent with human intervention disqualifies the equipment used as being an ATDS. But none of those cases controls here and each is easily distinguishable. Most were decided at the summary judgment stage, presumably after fact discovery into the nature and functionality of the equipment used by each of the defendants to send the text message or messages at issue. See Gragg v. Orange Cab Co., Inc., 995 F. Supp. 2d 1189, 1194 (W.D. Wash. 2014) (explaining that the defendant cab company’s computer program was able to send dispatch notifications only after the cab driver had physically pressed “accept”); Marks v. Crunch San Diego, LLC, 55 F. Supp. 3d 1288, 1289 (S.D. Cal. 2014) (detailing the methods by which phone numbers were inputted into the third-party web-based platform used by the defendant to send promotional text messages); Glauser v. GroupMe, Inc., No. C 11-2584 PJH, 2015 WL 475111, at *6 (N.D. Cal. Feb. 4, 2015) (finding that the text messages at issue were sent to the plaintiff in response to an individual’s creation of a group using the defendant’s group messaging application). In the only case decided at the motion to dismiss stage, the plaintiff’s own allegations made clear that the defendant’s messaging application could send text messages only at the affirmative direction of a user of the application and only to recipients selected by the user. See McKenna v. WhisperText, No. 5:14-cv-00424-PSG, 2015 WL 428728, at *3 (N.D. Cal. Jan. 30, 2015). Here, in contrast, the contents of the text message that Izsak received are not the equivalent of affirmative allegations of human intervention. And unlike the plaintiff in McKenna, Izsak does not concede the point. See id. (noting that the plaintiff’s opposition conceded that the application sent text messages only at the user’s affirmative direction).  In sum, while certain of Izsak’s allegations might be viewed as undermining his assertion that an ATDS was used to send the September 1, 2014 text message without any human intervention, the additional allegations in the complaint, taken together, are sufficient to allow the Court to reasonably infer that DraftKings sent Izsak a text message using equipment with some automated capacity. DraftKings should know if it sent marketing text messages utilizing an ATDS on the day in question. If it did not, it can simply deny the allegations; if there are questions as to whether it sent such text messages to Izsak and the other purported class members, those can be addressed through discovery. But for now, Izsak has provided enough factual support for the conclusion that an ATDS was used, and his allegations are therefore sufficient to state a claim under the TCPA.