Many federal courts are becoming frustrated with the explosion of TCPA litigation—which has become increasingly manufactured and industrialized by plaintiffs and a growing segment of the plaintiffs’ bar—clogging their dockets. That is particularly true in Chicago’s federal court, the Northern District of Illinois, which receives new TCPA cases on a daily basis. Some trial judges, understandably, attempt to cull the wheat from the chaff and dispose of meritless TCPA cases early in the litigation process.
But on March 12, 2018, the Seventh Circuit Court of Appeals, which only sees a fraction of the TCPA cases percolate up to its appellate level, held that the trial court granted summary judgment for a TCPA defendant too soon, and reversed the case back to the trial court so the plaintiff could pursue discovery.
"Is this a real person answering these text messages?"
In this case, Ricky Franklin sued Express Text, an SMS platform provider, for receiving 115 messages about WorldWin Events he claims he did not consent to receive. (Full disclosure: this is not Ricky Franklin’s only TCPA case; among many others, he also sued one of our clients.) After racking up over a year’s worth of allegedly unsolicited SMS messages, Franklin texted “help” in response to one of the messages. When the Express Text employee called Franklin two days later, Franklin told the employee that he didn’t want the messages, and he was promptly opted out of the text campaign. But then, after that call, Franklin began replying to the earlier messages, which prompted automated replies informing him to text “STOP to Opt Out.” He didn’t do that. Instead, he “responded many times with other messages, including ‘Hi’ and ‘Is this a real person answering these text messages?’.” He sued for getting those messages too. (Sadly, none of this is surprising.)
Soon after Franklin filed his case, Express Text moved for summary judgment and argued that its platform customer, WorldWin Events, not Express Text, “sent” the messages, such that even if Franklin’s story were true, Express Text couldn’t be held liable under the TCPA because it didn’t send the messages. (Telephone companies are exempted from TCPA liability when they act as a proverbial “dumb pipe” in carrying phone calls that happen to violate the TCPA; the FCC extended that rationale to so-called “fax broadcasters,” but then refused to extend the same logic to SMS platform providers, opting instead for a case-by-case determination.) Express Text supported its summary judgment motion with an affidavit from its COO explaining how the platform worked, namely, that it “serves merely as a conduit and carrier of a user’s text message.”
Entitled to Some Discovery...
Franklin argued that the motion was prematurely filed because he hadn’t had an opportunity to take discovery on, among other things, how the platform worked and the nature of the relationship between Express Text and WorldWin. The trial judge, doubtless aware of the manufactured nature of the claim, rejected Franklin’s request to put Express Text through the time- and resource-consuming discovery process, and granted Express Text’s summary judgment motion.
The Seventh Circuit held that Franklin was entitled to some discovery before the Court could resolve the summary judgment motion. The appeals court said he should have been given the Express Text-WorldWin contract, and some discovery into how the platform works and “who owns the written text transposed into a text message by Express Text’s system” [whatever that may mean].
... But Not All
But it was not all bad news for Express Text (and other companies who have been besieged with these types of manufactured claims when the TCPA plaintiff does everything but text the elegantly straight-forward “STOP” to—hold your breath—stop receiving text messages). The Seventh Circuit was emphatic: “Franklin should not be permitted to pursue discovery concerning those messages that Franklin received in response to messages he sent after Express Text removed him from its database.” (emphasis in original.) “Those messages are not of the kind prohibited by” the TCPA, the court held. “Franklin’s texts to a number known to be affiliated with an automated system, with content other than “STOP,” including questions, provided express consent for a message in reply.”
So while this decision may prompt some defense counsel to front-load a voluntary production of reasonably scoped information early in a case to ward off the ignorant-plaintiff argument, the Seventh Circuit’s affirmation of the sanctity of “STOP” is a valuable tool for companies dealing with the ever-increasing trend of professional plaintiffs suing for automated messages they know they’ll receive when they text anything but that operative four-letter word to keep ginning up additional statutory “damages.”
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