Written by Artin Betpera

Three individuals have sued Donald J. Trump for President, Inc. (the “Campaign”) in a class action for alleged violations of the TCPA.  Pederson v. Donald J. Trump for President, Inc., No. CV 19-2735 (JRT/HB), 2020 WL 3047779 (D. Minn. June 8, 2020).  The lawsuit stems from alleged automated text messages these individuals received from the Campaign without their consent.

The Campaign moved to dismiss the Plaintiffs’ complaint on the basis that (a) Plaintiffs could not establish Article III standing arising out of concrete injury traceable to the text message received from the Campaign; (b) Plaintiffs could not plead the Campaign sent the texts in question using an ATDS; and (c) at least one Plaintiff had agreed to arbitrate his claims against the Campaign.  The Court disagreed with each argument and denied the Campaign’s motion to dismiss.

In his ruling, Chief Judge John R. Tunheim found that a single text message is enough to establish Article III standing to sue.  While the court acknowledged the Eleventh Circuit’s contrary opinion in Salcedo v. Hanna, 936 F.3d 1162, 1172 (11th Cir. 2019), it agreed with the “logic of the majority of circuits . . . that a text message, while a different format than a phone call, voicemail, or fax, presents at least an equivalent level of disturbance and injury, and thus constitutes a cognizable injury under the TCPA.”

The court also rejected the Campaign’s challenge to Plaintiffs’ pleading of the Campaign’s use of an ATDS.  When faced with this issue at the pleading stage, many courts (including those in Seventh and Eleventh Circuits, but especially those in Circuits like the Eighth that have not yet weighed in) have punted the issue to be decided on summary judgment.  In Pederson, the court recognized the split, but swiftly concluded that the opinions of the Second and Ninth Circuit—finding that devices that dial from lists are encompassed by the statutory definition of ATDS—are “more persuasive.”

Lastly, the Campaign presented evidence that an individual entered one of the Plaintiff’s names into the Campaign’s database, along with his actual cell number.  Plaintiff disputed that person was him, and the court held that absent additional data “such as location or IP data” (which was not provided), the Campaign had not demonstrated “that [the plaintiff had] agreed to anything at all.”

While the Campaign’s arguments were each rejected by the district court, this ruling may simply be a pit stop on the way to the Eighth Circuit Court of Appeal, particularly as to the purely legal issues of Article III standing and the statutory definition of ATDS.  Given the clear split of authority on both issues and their potentially dispositive nature, the lack of decisive guidance from the Eighth Circuit to the lower courts makes this a ripe area for appellate review.  The Campaign may, therefore, decide to request interlocutory appellate review of the district court’s ruling.

 

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About The Author

Meet the TCPA Defense Force. A team of experience professionals that focus like a laser on the TCPA and provide comprehensive services that solve a number of TCPA problems. The TCPA Defense Force aims to mitigate TCPA exposure for both creative marketing teams and conscientious companies that engage their customers through telemarketing.