In Cour v. Life360, Inc., 2016 WL 4039279, at *4 (N.D.Cal., 2016), Judge Henderson dismissed a TCPA claim arising from a group-texting app. First, Judge Henderson found that the claim survived a Spokeo challenge.
Here, however, Cour has not simply alleged a procedural violation; instead, he relies on an allegation that he was harmed because Life360 invaded his privacy. FAC ¶ 53. On the standing question, this case is indistinguishable from Meyer v. Bebe Stores, Inc., in which the plaintiff alleged that she received a single unsolicited text message from the defendant and “alleged an invasion of privacy.” No. 14-cv-00267-YGR, 2015 WL 431148, at *1-2 (N.D. Cal. Feb. 2, 2015). The court held that this was sufficient to meet Article III standing requirements even though the plaintiff did “not allege she incurred any carrier charges for the specific text message at issue.” Id. at *2. Cour relies on two other cases that have also found concrete injuries based on alleged violations of the TCPA: Rogers v. Capital One Bank (USA), N.A., No. 1:15-CV-4016-TWT, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016) (finding concrete injury where the plaintiffs alleged that “Defendant made unwanted phone calls to their cell phone numbers”), and Booth v. Appstack, Inc., No. C13-1533JLR, 2016 WL 3030256, at *5 (W.D. Wash. May 24, 2016) (finding concrete injury in the form of “waste[d] time answering or otherwise addressing widespread robocalls”). Life360 attempts to distinguish these cases on grounds that the alleged conduct there was more pervasive – “widespread robocalls” in Booth, id., and “at least 40 calls” to one plaintiff’s cell phone in Rogers, 2016 WL 3162592, at *1. However, such distinctions go only to the extent of the injury, not whether there was a concrete injury at all. Indeed, in Rogers, another plaintiff allegedly received only two unwanted calls, id., and the Eleventh Circuit case relied on by the court found standing where the plaintiff allegedly received only one unwanted fax message, Palm Beach Golf Ctr.-Boca, Inc. v. John G. Sarris, D.D.S., P.A., 781 F.3d 1245, 1251 (11th Cir.2015). In light of these authorities, the Court rejects Life360’s argument that Cour has failed to allege a concrete injury sufficient to confer Article III standing.
Judge Henderson found, however, that the App passed muster under FCC rulings.
As Cour correctly observes, two other courts in this district found no TCPA liability where defendants did inform users that invitations would be sent via text message. However, neither court focused on that characteristic as a decisive factor. To the contrary, the key factor in McKenna v. WhisperText was the “human intervention” that resulted from the fact that “the Whisper App [could] send SMS invitations only at the user’s affirmative direction to recipients selected by the user.” No. 5:14-cv-00424-PSG, 2015 WL 5264750, at *2-4 (N.D. Cal. Sept. 9, 2015) (internal quotations marks and citation omitted). The court’s decision did not even mention that users were informed that messages would be sent by text, an allegation that was discussed in an order dismissing a prior version of the complaint. McKenna v. WhisperText, No 5:14-cv-00424-PSG, 2015 WL 428728, at *2 (N.D. Cal. Jan. 30, 2015). Likewise, while the court in Huricks v. Shopkick, Inc. concluded that the undisputed evidence showed that users were told how invitations would be sent to selected contacts (i.e., by text, email, or Facebook), the court did not indicate whether this was a dispositive factor in its analysis. No. C-14-2464-MMC, 2015 WL 5013299, at *4 (N.D. Cal. Aug. 24, 2015). This Court is therefore not persuaded that either of these cases warrants a finding that Life360 is the maker of the calls at issue here. Cour also points to another difference between Life360 and TextMe: that Life 360 initially automatically pre-selects certain contacts for the user to invite, while TextMe does not. This difference is immaterial. Prior to reaching the screen on which the contacts have been pre-selected, the Life360 user must first indicate a willingness to share contacts with the app and, upon answering that question in the affirmative, has the option to de-select any contacts whom the user does not want to invite – and, as Cour’s counsel conceded at oral argument, can choose to de-select all of the pre-selected contacts so as not to invite anyone. Invitations are not sent until the user presses an “invite” button, and they are only sent to those contacts selected by the user. As the FCC found regarding TextMe, these “affirmative choices by the app user” lead this Court to conclude that it is the app user who initiates the invitation and, therefore, is the maker of the call. 30 F.C.C. Rcd. 7961 ¶ 37. Life360 is not the maker of the call and, consequently, cannot be liable under the TCPA.