District Court (Pa.) Says TCPA Plaintiff Does Not Have To Plead Phone Ownership; Says Class Definition Is Not Impermissible “Fail-Safe” Class

In Abella v. Mozea, LLC, , 2015 WL 6599747, at *4 (E.D.Pa. 2015), Judge Dalzell allowed a TCPA text-message class action past the pleading stage, based on allegations that

Defendant SAC is a student loan consolidation and forgiveness service that offers assistance to consumers hoping to alleviate their student loan debt burden. Compl. at ¶ 10. Defendant Mozeo is an online platform designed to facilitate “bulk sms (sic) text blasting” and allow a business to “easily reach all of [its] mobile contacts.” Id. at ¶ 11. SAC partnered with Mozeo to conduct a nationwide “bulk sms (sic) text blast,” or a mobile marketing campaign.Id. at ¶ 12. The campaign sent unsolicited text messages to consumers’ cellular telephones without obtaining any form of prior express consent. Id. at ¶ 13. Abella was the recipient of many unwanted text messages in March and April of 2015. Id. at ¶ 26. On April 16, 2015, Abella received a text message from SAC through Mozeo and responded “STOP.” Id. at ¶ 27. This request was followed by the receipt of a Mozeo Promotional Text Message disguised as an opt-out text message. Id. Abella is not a customer of SAC or Mozeo. Id. at ¶ 28. He did not provide his cellular telephone number to either company and did not supply any form of prior express consent to receive text messages from SAC or Mozeo.

The Court found that the Plaintiff did not have to plead that he owned the cell phone or was charged for the text messages.

SAC asserts that Abella has not pled sufficient facts to state a claim under the TCPA, arguing that he has not pled that he owned the telephone which received the messages and that Abella has not shown that he was charged for the text messages. The first argument is borderline preposterous, as Abella states in his complaint that in March of 2015, SAC “began transmitting unwanted text messages…to Plaintiff Abella’s cellular telephone.” Compl. at ¶ 26. It takes no leap of logic to conclude that “Abella’s cellular telephone” is actually Abella’s cell phone — that he owns. Second, SAC misreads 47 U.S.C.A. § 227 to require that a plaintiff be charged for the unwanted text messages in order to state a claim. District courts throughout the country, and, in particular, the 11th Circuit,4 have noted that the last phrase of 47 U.S.C.A. § 227(b)(1)(A)(iii) referencing “any service for which the called party is charged for the call,” is a separate locution that does not modify the other services listed before it. See, e.g., Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1257 (11th Cir. 2014) (stating that the phrase “for which the called party is charged” does not apply to services listed before it); Manno v. Healthcare Revenue Recovery Group, 289 F.R.D. 674, 683 (S.D. Fla. 2013) (holding that “the TCPA does not require the plaintiff to be ‘charged for’ the calls in order to have a standing to sue”). We therefore reject SAC’s assertion that Abella must plead that he was charged for the messages in order to state a plausible claim for relief. Thus, we will deny SAC’s motion to dismiss for failure to state a claim.

The Court found that the class definition was not an impermissible “fail-safe” class.

We do not think Abella’s proposed class meets the definition of a fail-safe class, nor does it raise the same issues on whether potential class members are as ascertainable as the proposed class in Zarichny. First, Abella’s proposed class is not a fail-safe as he (intentionally, no doubt) makes no reference to SAC’s use of an automatic telephone dialing system (ATDS) in the class definition, which is a required element for a claim under the TCPA, 47 U.S.C.A. § 227(b)(1)(A)(iii). Recently, a district court in Minnesota found that a similar class definition making no reference to the use of an ATDS did not constitute a fail-safe class. Soular v. Northern Tier Energy LP, No. 15-CV-556, 2015 WL 5024786, at *8 (August 25, 2015). We agree with our Minnesota colleague’s reasoning and find that Abella’s proposed class definition is not a “fail-safe.”Moreover, Abella is not relying on potential class members’ word when determining whether they gave SAC consent to send them text messages, as was the case in Zarichny. Abella instead will rely on SAC’s internal records that detail whether it received consent to text certain phone numbers, a method that our Court of Appeals has stated is sufficient to satisfy the requirement that potential class members be ascertainable. See In re Community Bank of Northern Virginia Mortg. Lending Practices Litigation, 795 F.3d 380, 397 (3d Cir. 2015) (finding that the plaintiff’s proposed class was ascertainable because the defendant “possesse[d] all of the relevant bank records needed to identify the putative class members”). This case is not one where “no amount of discovery or time will allow for plaintiffs to resolve deficiencies in class definitions under Rule 23,” McPeak, 2014 WL 4388562, at *4, and thus it is inappropriate to strike Abella’s class definition from the complaint. We will therefore deny SAC’s motion to strike said class definition.