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CEB Prac. Guide § 2B.05: "Call" Defined -- Text Messages

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In Hunsinger v. Gordmans, Inc., 2016 WL 7048895, at *5–6 (E.D.Mo., 2016), Magistrate Judge Nocel deferred summary judgment on whether an ATDS was used until there was further discovery undertaken. The question at issue is whether the mGage platform Gordmans used to send the text messages constitutes an ATDS. The TCPA defines an ATDS as “equipment which has the capacity… Read More

In Wick v. Twilio Inc., 2016 WL 6460316, at *2–3 (W.D.Wash., 2016), Judge Lasnik dismissed a TCPA Plaintiff's claim against Twilio on the basis that the Plaintiff consented to receive the text messages at issue. The parties disagree as to whether the text and call at issue qualifies as telemarketing. If the text and call do qualify as telemarketing, then… Read More

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

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