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 matter. In Aderhold v. Car2Go N.A., LLC, 2014 WL 794802 (U.S.D.C. W.D. Wash. 2014), a copy of which can be found here, Judge Jones granted judgment on the pleadings against a TCPA Class-Action Plaintiff on the Defendant’s affirmative defense of “prior express consent”.  The facts were as follows:

Mr. Aderhold, a Seattleite, applied to become a car2go member in December 2012. Car2go is a one-way local car-sharing service that Defendant car2go N.A., LLC provides. In Seattle, for example, car2go provides hundreds of cars parked on city streets. Any member can use a car to drive to any location within preset boundaries, paying car2go by the minute for the use of the car. Once the member arrives at her destination, she simply leaves the car there, where another car2go member will presumably use it to go to another destination. Car2go operates not just in Seattle, but in at least five other cities across the United States.¶  Mr. Aderhold registered to become a car2go member by filling out a brief form on the car2go website. The form (Compl., Ex. 1) announced that unless Mr. Aderhold had a valid promotional code, he would pay a “One Time Registration Fee of $35.00 (plus tax).” The form required him to input personal information including his postal address, his “[p]rivate cell number,” and his email address. The form included a section called “[o]ther mandatory disclosures,” which informed him that he was required to review three documents as part of the registration process. The form required him to check three boxes confirming his review and acceptance of the car2go “Terms and Conditions,” the car2go “Trip Process” document, and the car2go “Privacy Policy.” The registration form explained that each of those documents would “control your membership application and subsequent participation in the car2go trip process.” The court will consider the disclosures contained in the registration form and these three documents in its later analysis.  Within seconds after Mr. Aderhold submitted his registration form, he received an email at the address he had provided and a text message on the cellular phone whose number he had provided. The text message consisted of two sentences: “Please enter your car2go activation code 145858 into the emailed link. We look forward to welcoming you to car2go.” Then Mr. Aderhold sued. He asserts that car2go broke the law by sending him the text message.

Plaintiff complained that he should not be bound by the “Browswrap” disclosures contained in car2go’s Terms and Conditions and, even if he was, that they inadequately disclosed that he would receive a text message back from car2go to complete the registration process once he provided his contact information.  Judge Jones rejected the contention under Satterfield:

Although it is tempting, the court declines to ground its conclusion solely in car2go’s disclosure in the Trip Process document that it could “confirm a registration via instant text message.” It is possible, perhaps even likely, that a reasonable reader of that document would understand the use of the term “registration” to refer to the registration form that Mr. Aderhold sent in. But given the context – specifically the use of the term in a section that otherwise does not bear upon the “registration” process and the use of the term “reservation” in place of “registration” in an otherwise identical disclosure in the Terms and Conditions – the court finds that reasonable people could either be confused about the meaning of “registration” or conclude that that car2go used the term in error. ¶  The court grounds its conclusion, instead, in the reasoning of Satterfield. Much like the consumer in Satterfield, Mr. Aderhold checked a box (three of them, actually) indicating his assent to particular conditions. Among those was the disclosure in the Trip Process document that car2go “will validate personal information provided by the applicant.” Compl.., Ex. 3 at ¶ I. The same document explained that “car2go will confirm acceptance of the application . . . .” Id. And more generically, the Privacy Policy disclosed that car2go would use his personal information in any car2go “business process,” including but not limited to “periodic membership validation.” The text message that Mr. Aderhold receives falls squarely within the scope of these disclosures. It “validated” that Mr. Aderhold had disclosed a valid cellular telephone number, it “confirm[ed] acceptance of [his] application,” and it was a form of “membership validation.”  ¶  Unlike Mr. Aderhold, the court does not interpret the Satterfield panel’s declaration that express consent must be “clearly and unmistakably stated” to require any particular form of consent. See In re Rules and Regulations Interpreting the TCPA, 27 F.C.C.R. 1830, 1838 (“[W]e note that the TCPA is silent on the issue of what form of express consent – oral, written, or some other kind – is required for calls that use an automatic telephone dialing system . . . to deliver a telemarketing message.”) (Feb. 15, 2012). In particular, it does not require specific consent to the medium by which a company contacts a consumer.  The consumer in Satterfield did not consent to be contacted by text message, she merely consented to “receive promotions” on a form in which she provided her email address and cellular phone number. 569 F.3d at 949. The Satterfield court held that a “voice message or a text message are not distinguishable in terms of being an invasion of privacy,” id. at 954, and the court expects that the Satterfield court would have reached the same conclusion about email as well. In Mr. Aderhold’s case, although he arguably did not explicitly grant permission for car2go to contact him by text message regarding his registration form, no reasonable person in his shoes could have doubted that car2go would contact him in some manner. That car2go chose a text message (in addition to an email) is not significant. Mr. Aderhold clearly and unmistakably consented to being contacted about his registration for car2go.  Satterfield is the touchstone of the court’s analysis, but court’s ruling today takes guidance from district court cases that the court has cited herein (and many more that it has not cited). Many of those cases apply Satterfield in a manner that is both faithful to that court’s reasoning and consistent with common sense. Although the text that car2go sent Mr. Aderhold is not a simple confirmation of receipt of a consumer’s text message, the cases addressing confirmatory text messages (Ryabyshchuck, Ibey, and Emanuel) embrace the notion that a customer who sends a text at least consents to receive a text confirming its receipt. Although the court has no need to consider how broadly to  construe the consent of a consumer who provides his cellular phone number to an entity, this court concurs with others who have concluded that a consumer at least consents to text messages “closely related to the circumstances under which plaintiff provided his cell phone number.” Roberts, 2013 U.S. Dist. LEXIS 76319, at *13. ¶  Permeating this court’s conclusions is the common sense approach that courts construing the TCPA have advocated. Even if car2go had made no disclosures at all about the purposes for which it would use Mr. Aderhold’s cellular number, it defies logic to contend that he did not consent to be contacted regarding his membership application. When people provide their telephone numbers in commercial transactions, it would be odd to imagine that they do not consent to being contacted for purposes of completing that transaction. Could a person who provided a telephone number to a delivery service seriously contend that she had not consented to be telephoned by the service to inform her that her package was en route? Could a person who provided a telephone number to a mechanic claim that she did not consent to be called (or texted) when her car was repaired? According to Mr. Aderhold, if the delivery service and mechanic used an autodialer to make those calls, then they broke the law. The court is confident that Congress did not intend that result when it passed the TCPA. And although Mr. Aderhold is apparently an exception, the court doubts that most customers would feel that their privacy had been invaded by such calls. All of these considerations strengthen the court’s conclusion that Mr. Aderhold consented to the text message he received.

Judge Jones held, however, that the defendant’s Rule 68 Offer of Judgment did not moot the Plaintiff’s case.

“[A]n unaccepted Rule 68 offer that would have fully satisfied a plaintiff’s claim does not render that claim moot.” Diaz v. First Am. Home Buyers Protection Corp., 732 F.3d 948, 954–55 (9th Cir.2013). The holding from Diaz, which the Ninth Circuit issued after the parties completed briefing on the motions before the court, is dispositive of car2go’s challenge to the court’s subject matter jurisdiction.  As car2go has noted, courts of appeals and “the majority of courts and commentators” have come to a different conclusion than the Ninth Circuit reached in Diaz. 732 F.3d at 952–53 & n. 5 (citing Rand v. Monsanto Co., 926 F.2d 596, 598 (7th Cir.1991), O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 574–75 (6th Cir.2009), as well as similar decisions of the Third, Fourth, Fifth and Tenth Circuits along with leading civil procedure treatises). The Supreme Court has expressly declined to resolve the question. Genesis Healthcare Corp. v. Symczyk, ––– U.S. ––––, –––– – ––––, 133 S.Ct. 1523, 1528–29, 185 L.Ed.2d 636 (2013) (“While the Courts of Appeals disagree whether an unaccepted offer that fully satisfies a plaintiff’s claim is sufficient to render the claim moot, we do not reach this question, or resolve the split, because the issue is not properly before us.”). Four dissenting justices in Genesis Healthcare, however, would have reached the question, and would have held that an unaccepted Rule 68 offer, even one that affords complete relief, moots nothing. Id. at 1534–35 (Kagan, J., dissenting). It was the reasoning of Justice Kagan’s dissent in Genesis Healthcare that the Ninth Circuit adopted in Diaz. 732 F.3d at 954 (“We are persuaded that Justice Kagan has articulated the correct approach.”).  Justice Kagan’s dissent and the Diaz panel articulated one exception to the rule they articulated: a court “may have ‘discretion to halt a lawsuit by entering judgment for the plaintiff when the defendant unconditionally surrenders and only the plaintiff’s obstinacy or madness prevents her from accepting total victory.’ ” Diaz, 732 F.3d at 955 (internal quotation to Genesis Healthcare, 133 S.Ct. at 1536. But in Diaz, where the plaintiff hoping to represent a class had rejected an offer more favorable than she could have obtained on her individual claim, the court found the plaintiff insufficiently obstinate or mad. 732 F.3d at 955. The court reaches the same conclusion as to Mr. Aderhold.FN1 The court notes, moreover, that although Mr. Aderhold filed a notice of supplemental authority identifying Diaz, car2go did not request leave to file supplemental briefing addressing that case.

Aderhold v. Car2go N.A., LLC, 2014 WL 794805 (W.D.Wash. 2014)