In In re Jiffy Lube Intern., Inc., Text Spam Litigation, — F.Supp.2d —-, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and that Plaintiff had properly pleaded that Defendant used an autodialer to send text messages.
The District Court found vicarious liability properly pleaded:
First, at least one previous Ninth Circuit case implicitly accepted that an entity can be held liable under the TCPA even if it hired another entity to send the messages. In Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir.2009), discussed by the parties with regard to other issues, the Ninth Circuit reversed a district court’s grant of summary judgment that held there was no issue of material fact as to whether the equipment used by the defendants fit the description contained in the TCPA. . . ¶ . . . Thus, given persuasive authority and Heartland’s failure to sufficiently distinguish this case, the court finds that Heartland can be held liable even if it did not physically send the messages at issue. ¶ . . . Moreover, courts in this circuit have generally upheld complaints similar to this one in the face of 12(b)(6) motions. E.g. Kramer v. Autobytel, 759 F.Supp.2d 1165 (N.D.Cal.2010) (upholding complaint that alleged that defendant “contracted with LeadClick, who thereafter contracted with B2Mobile, for the purpose of advertising Autobytel’s products and services through spam text messages”) (First Amended Complaint, ¶ 39, Doc. No. 20)); Kazemi v. Payless Shoe Source, 2010 WL 963225 (N.D.Cal.2010).
The District Court found that providing a cellular telephone number with the receipt for the purchase of services did not constitute consent under the TCPA, because the District Court refused to take judicial notice of the receipts:
While 47 U.S.C. § 227 generally prohibits using an auto-dialer for telemarketing, it excepts those calls “made with the prior express consent of the called party.” § 227(b)(1)(A). Heartland argues that at least four of the six named Plaintiffs provided Heartland with prior express consent to the text messages by providing their telephone numbers to Heartland on invoices when they received oil changes. Heartland provides copies of these invoices along with a request for judicial notice, which is opposed by Plaintiffs. ¶ The court denies Heartland’s request for judicial notice of exhibits B–F, which Heartland claims are the invoices on which Plaintiffs provided their telephone numbers. ¶ . . . Here, as in Kenneally, Defendant seeks to introduce a document that it hopes will support its theory of defense, claiming that the complaint relies on the document. In fact, the complaint alleges the opposite of what Heartland claims the document represents.
The District Court found use of an autodialer properly pleaded:
Plaintiffs have also sufficiently alleged that the messages came from an ATDS. It is true that in many TCPA cases cited by Heartland there seems to have been no pre-existing relationship between the parties, indicating some probability that messages were sent randomly.FN8 However, that does not establish that the absence of a relationship is necessary for Plaintiffs to successfully allege that an ATDS was used. Plaintiffs have stated that they received a text message from an SMS short code and that the message was sent by a machine with the capacity to store or produce random telephone numbers. While additional factual details about the machines might be helpful, further facts are not required to move beyond the pleading stage. It is possible that further litigation will determine that no ATDS was used, but the complaint has pleaded enough facts “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). [FN8. First, as Plaintiffs point out, the machine only needs to have the capacity to store or produce numbers using a random or sequential number generator, so creating a pleading standard that requires an inference that such a capacity was actually used would create an unwarranted burden. ¶ Heartland has also failed to show that a machine which is fed a large list of telephone numbers and then dials them se-quentially or randomly (see Satterfield, 569 F.3d at 949), should not be considered an ATDS. It is true that some (and maybe all) recipients in this case were Jiffy Lube customers, and thus may have been contacted from a list of telephone numbers. But Heartland has not adequately demonstrated that this would absolve them of liability under the statute, given that such a machine could arguably be said to “store … telephone numbers to be called, using a random or sequential number generator.” 47 U.S.C. § 227(a)(1).]
The District Court also denied a motion to compel arbitration, finding that the TCPA claims were not within the scope of the arbitration agreement.
The language of the arbitration agreement is incredibly broad. It purports to apply to “any and all disputes” between Jiffy Lube® and Cushnie, and is not limited to disputes arising from or related to the transaction or contract at issue. Heartland has not identified a case involving an arbitration agreement that is so unlimited, and indeed does not attempt to argue that the agreement can truly encompass “any and all disputes” between the parties. As Heartland must admit, a suit by Cushnie against Heartland regarding a tort action arising from a completely separate incident could not be forced into arbitration—such a clause would clearly be unconscionable. For example, in Smith v. Steinkamp, 318 F.3d 775, 777 (7th Cir.2003), Judge Posner noted that if there were no limiting clause in the arbitration agreement at issue in that case, “absurd results [would] ensue,” such that if a defendant murdered the plaintiff in order to discourage default on a loan, the wrongful death claim would have to be arbitrated. ¶ Implicitly, Heartland seems to urge the court to construe this agreement narrowly enough to avoid invalidation, but broadly enough to encompass the claims at issue in this case. The court declines to rewrite the agreement in such a fashion. Heartland has not pointed to any authority that would give the court permission to do so. ¶ Even if the court were willing to read the agreement so as to contain a typical limitation, such as that the dispute at issue must “arise out of or relate to” the contract, it is doubtful whether that language would encompass the claims here. Though it seems likely that Cushnie provided his telephone number when signing the contract, it is unclear that later use of that number to commit a tort can be said to relate to the contract—contrary to Heartland’s repeated urging, the fact that the text message offered membership in a club that would provide discounts on an oil change does not establish that the text message was related to the contract governing Cushnie’s oil change. The existence of the original contract may have been the “but for” cause of the alleged TCPA violation, but this alone is not necessarily enough to establish that the claim arises out of or relates to the contract.