In Aderhold v. Car2Go N.A., LLC, 2016 WL 4709873 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit held that a TCPA plaintiff consented to receive texts messages as part of the registration process for a car-sharing program. Eric Aderhold appeals the district court's dismissal of his putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.… Read More
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.… Read More
In Lennartson v. Papa Murphy's Holdings, Inc., 2016 WL 51747, at *1-2 (W.D.Wash., 2016), Judge Leighton stayed a TCPA class action pending Spokeo even though the Court recognized that the Plaintiff suffered actual damages and thus had Article III standing. In 2011, Papa Murphy's started texting those who had signed-up on its website to receive promotional messages and those who had texted… Read More
In Johnson v. Yahoo!, Inc., 2016 WL 25711, at *1-2 (N.D.Ill. 2016), Judge Shah found that part of a TCPA class could be certified against Yahoo!. The facts were as follows. Yahoo! Messenger also allows users to send personalized messages to people's cell phones through a feature called Mobile SMS Messenger Service, or PC2SMS. PC2SMS bridges the gap between the online and… Read More
In Melito v. American Eagle Outfitters, Inc., 2015 WL 7736547, at *4-5 (S.D.N.Y., 2015), Judge Caproni dismissed a TCPA class action against Experian for unsolicited texts sent by American Eagle in connection with a marketing campaign. First, the Court found no direct liability under the TCPA. The plain language of section 227(b)(1)(A)(iii) imposes liability upon persons that “make” a telephone call… Read More
In McKenna v. WhisperText, 2015 WL 5264750, at *1 (N.D.Cal., 2015), Judge Grewal dismissed Plaintiff's TCPA class action because no TCPA was used. The facts were as follows: Defendants WhisperText, LLC, and WhisperText, Inc. operate an anonymous sharing service called Whisper. The idea is to allow users to share their ideas, hopes and fears without attribution. Like many services accessed primarily… Read More
In Huricks v. Shopkick, Inc., 2015 WL 5013299, at *1 (N.D.Cal., 2015), Judge Chesney granted summary judgment to a TCPA defendant based on the FCC's 2015 order. In the operative complaint, the First Amended Complaint (“FAC”), plaintiffs allege that Shopkick “operates a shopping application for Apple and Android devices that urges consumers to purchase retail goods for sale close to… Read More
In Luna v. SHAC, LLC dba Sapphire Gentlemen's Club, here, Judge Lloyd granted summary judgment to a TCPA defendant who was accused of violating the TCPA for sending text messages to customers. Shac operates the Sapphire Gentlemen’s Club in Las Vegas, Nevada. Shac engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (here, EXTexting.com) for sending promotional text messages to… Read More
In Keating v. Peterson's Nelnet, LLC, 2015 WL 4430355 (6th Cir. 2015), the Court of Appeals for the Sixth Circuit affirmed summary judgment in favor a TCPA defendant on whose behalf unauthorized text messages were sent. First, the Sixth Circuit found that texts were "calls" under the TCPA. Neither the plaintiff nor the defendants contest the inclusion of text messages… Read More
In Reardon v. Uber Technologies, Inc., 2015 WL 4451209 (N.D.Cal., 2015), Judge Tigar dismissed part of a TCPA class action filed against Uber for recruitment texts to potential drivers. Here, Uber argues that the text messages it allegedly sent cannot be said to “constitute telemarketing” or to “include or introduce an advertisement” because the texts do not promote its provision… Read More
In Flores v. Adir International, LLC, 2015 WL 4340020, at *2-5 (C.D.Cal., 2015), Judge Birotte dismissed a TCPA class action with prejudice because he believed Plaintiffs could not plead facts to support their contention that text messages were sent by an ATDS. Defendant moves to dismiss both of Plaintiff's claims under the TCPA for failure to allege that Defendant contacted Plaintiff… Read More
The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments. For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More
In Glauser v. GroupMe, Inc., 2015 WL 475111 (N.D.Cal. 2015), Judge Hamilton found that GroupMe's business model did not trigger or violate the TCPA because the software that sent the text was triggered by GroupMe's customers and, therefore, there was "human intervention". This putative class action arises under the Telephone Consumer Protection Act (“TCPA”), which prohibits the making of any call (including… Read More
In Marks v. Crunch San Diego, LLC, --- F.Supp.3d ----, 2014 WL 5422976 (S.D.Cal. 2014), Judge Bashant found that defendants' text message system was not an ATDS within the meaning of the TCPA. Defendant Crunch San Diego, LLC (“Crunch”) operates gyms in San Diego, California, as well as in several other states. Compl. ¶ 3, ECF 1. Plaintiff Jordan Marks entered into… Read More
In McKenna v. WhisperText, 2014 WL 4905629 (N.D.Cal. 2014), Judge Grewal required a TCPA plaintiff to plead more as to whether an ATDS was used, and refused to stay the case based on the Primary Jurisdiction Doctrine. Plaintiff Tony McKenna filed a class action complaint pursuant to the federal Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A)(iii) (TCPA). McKenna brought suit against Defendants… Read More
In Gomez v. Campbell–Ewald Co., --- F.3d ----, 2014 WL 4654478 (9th Cir. 2014), the Court of Appeals for the 9th Circuit reversed the district court's summary judgment in favor of a TCPA defendant marketing company. The message was the result of collaboration between the Navy and the Campbell–Ewald Company,FN1 a marketing consultant hired by the Navy to develop and execute a… Read More
In Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D. Cal. 2014) here, Judge Burns granted summary judgment to the Defendant on Plaintiff’s TCPA and UCL claims. For all of the above reasons, the Court finds that summary judgment is appropriate for Vertical Fitness on its affirmative defense that Van Patten consented to receiving the texts at issue when he… Read More
On Thursday the FCC entered rulings on the petitions filed by GroupMe, Inc.: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-33A1.pdf and the Cargo Airline Association: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-32A1.pdf The FCC's ruling on the petition of Group Me, Inc. for an expedited declaratory ruling and clarification on the issue of whether it could rely on its members to provide consent for "called parties" that would receive text messages as… Read More
In Gragg v. Orange Cab Co., Inc., 2014 WL 801305 (W.D.Wash. 2014), Judge Lasnik denied Plaintiff's motion to reconsider his previous ruling that Orange Cab did not use a dialer to send text messages for passsengers who ordered cabs in Seattle. Defendants moved for summary judgment based on the undisputed characteristics of its proprietary dispatch notification system. Dkt. # 69. Defendants expressly… Read More
Congratulations to the Firm's client, car2go, who obtained Judgment on the Pleadings in the District Court for the Western District of Washington on its affirmative defense of "prior express consent" in a class action filed under the TCPA. Eric Troutman, who practices in the Firm’s Orange County Office but who also is a member of the Washington State Bar, represented car2go in the… Read More
