In Warciak v. One, Inc., 2016 WL 7374278 (Approx. 5 pages), Judge Kennelly allowed a TCPA claim to proceed against a social networking app.
One argues that the After School App functions just like TextMe and therefore that its users initiate the allegedly unlawful text messages. Def.’s Mem. in Supp. of Mot. to Dismiss 9–10. But Warciak’s allegations identify significant differences between the two applications, from which one plausibly could infer that One initiated the texts. In finding that TextMe users initiated the text messages, the FCC pointed to the series of affirmative choices that users were required to make before the application sent the invitations. FCC Order, 30 F.C.C.R. at 7983–84. TextMe requires users to click a button labeled “invite your friends,” to select whether to invite all friends or just a particular set, and to again choose to send the invitational text. Id. In contrast, Warciak alleges that users of the After School App are never informed that their actions will result in an invitational text message. Screenshots of the After School App’s verification process support Warciak’s claim and highlight the differences between the After School App and TextMe. Compl. ¶¶ 12–22. These images show that the After School App’s “student verification” process—which ultimately results in the allegedly unlawful text messages—never uses the word “invite” or any similar term suggesting that others will be contacted. See id. ¶¶ 12–22. The application first prompts the user with a button that says “I’m a student Verify now with Facebook.” Id. ¶ 15. It then asks users for access to their contacts, stating “To verify you are a student, you must identify your classmates from the contacts.” Def.’s Mem. in Supp. of Mot. to Dismiss, Ex. A. Finally, the application asks users to “[i]dentify classmates in contacts to prove” that they are students. Id. ¶ 16. The screen on which the users select classmates is labeled “Student Verification.” Id. ¶ 16. The affirmative choices made by the users of One’s application are therefore significantly different from those made by users of TextMe. TextMe users are on notice that they are selecting contacts in order to send some type of invitational message, given the frequent use of the word “invite” throughout the application. After School App users have no such notice, however, given that no prompt used during the verification process suggests that it will result in invitational messages being sent. The After School App also evidences other characteristics suggesting that One, not the user, initiates the text messages. First, the application’s users do not appear to have a choice whether to proceed through this verification process and ultimately to send the invitations, a factor that the FCC found persuasive when considering YouMail. See FCC Order, 30 F.C.C.R. at 7981. Further, users are not involved in the process of creating the message itself and have no influence over the message’s content. See id. at 7984. It is true that the users of the After School App have more “involvement,” literally speaking, than the users of Glide. Specifically, After School App users are at least required to make certain selections before the messages are sent. This is immaterial, however, if the users are unaware that their selections will lead to invitational text messages. Just as with Glide, it appears that users of the After School App play “no discernible role in deciding whether to send the invitational text messages.” Id. at 7983. One points to two cases from district courts in other circuits in which the courts have applied The FCC Order and concluded that users—and not the operator of the mobile application—initiated allegedly improper text messages under the TCPA. The After School App is noticeably different from the applications considered in those cases. In Cour v. Life360, Inc., No. 16-cv-00805-THE, 2016 WL 4039279 (N.D. Cal. July 28, 2016), the district court considered an application that permits users to see other users on their “maps.” Id. at *1. Similar to the process in TextMe—and unlike that which occurs in the After School App—Life360 users are required to press a button that says “Invite” before any messages are sent out. Id. The same is true for the application considered by the court in Wright v. Lyft, Inc., a case from the Western District of Washington that One attaches to its motion. See Def.’s Mem. in Supp. of Mot. to Dismiss, Ex. B. There, the plaintiff alleged that users were specifically prompted to access an “invite friends” feature of the Lyft application. Id. Thus One’s attempt to align the After School App with these other applications is unsuccessful, as One’s application never indicates to users that they are sending invitations. The users cannot be the initiators of these text messages for purposes of the TCPA if, as Warciak has alleged, the users were unaware that their actions would result in invitations. Warciak has therefore sufficiently alleged that One initiated unwanted text messages sent via its mobile application in violation of the TCPA. The Court denies One’s motion to dismiss count 1.