The plaintiffs’ bar loves the Telephone Consumer Protection Act (“TCPA”)—which prohibits certain unsolicited phone calls and text messages—because it provides for statutory damages of up to $1,500 per violation and thus is a great vehicle for shakedown class actions against businesses. One recent wave of questionable TCPA class actions asserts that messages sent to confirm receipt of unsubscribe requests violate the TCPA. Although the notion is absurd, some businesses targeted by these lawsuits have agreed to settlements rather than risk defending themselves in the court hand-picked by the plaintiff.
But last week, a federal district court in California finally ruled on a motion to dismiss in one such class action—and granted it.
The plaintiff in Ibey v. Taco Bell Corp. (pdf), No. 12-cv-583 (S.D. Cal.), had sent a text message in response to the defendant’s invitation to complete a survey. A short time later, he sent a “STOP” message, requesting that defendant cease sending him text messages. Consistent with the Mobile Marketing Association’s Consumer Best Practices, the defendant sent the plaintiff a message confirming that he had successfully opted out of the program. The plaintiff then brought a class action alleging that this confirmatory text message violated the TCPA.
The district court held that imposing liability “would contravene public policy and the spirit of the [TCPA],” which was aimed at the “prevention of unsolicited telemarketing in a bulk format.” Slip op. at 5. The court explained that because the plaintiff had “voluntarily provided his phone number by sending the initial text message,” the defendant’s “single, confirmatory text message did not constitute unsolicited telemarketing” and therefore was not “an invasion of privacy contemplated by Congress in enacting the TCPA.” Id.
The district court also dismissed the action for a second, independent reason: the plaintiff had failed to adequately plead that the defendant used an “automatic telephone dialing system.” The TCPA defines such a system as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). The defendant argued that confirmatory text messages were not produced as a result of randomly or sequentially generated numbers, but rather were responses to “STOP” messages from particular phone numbers. The court agreed, noting that the complaint “neither specifies that the device [used to send the confirmatory text message] has the capacity to store or produce telephone numbers nor that the system uses a random or sequential number genera[tor] to text message the numbers.” Slip op. at 6. The court concluded that a mere “allegation that there ‘was no human intervention on the part of the defendant’ does not satisfy or allege the requirements of the statute.” Id.
The Ibey decision is a welcome development for businesses—and hopefully signals the beginning of the end for these abusive TCPA class actions.