On June 30, 2020, Judge John Sinatra of the United States District Court for the Western District of New York (the “Court”), in Gerrard v. Acara Solutions Inc. (18-cv-1041-JLS-LFG), held that certain text messages alerting plaintiff to a potential employment opportunity were not advertisements and, therefore, did not violate the Telephone Consumer Privacy Act (“TCPA”) or its associated regulations. Ms. Samantha Gerrard (“Plaintiff”) commenced a putative class action lawsuit following the receipt of hundreds of text messages allegedly sent by Acara Solutions, Inc. (“Defendant”). Defendant moved to dismiss the lawsuit for failure to state a claim under the TCPA. Although the United States Magistrate Judge recommended denying Defendant’s motion to dismiss, the Court disagreed, and instead dismissed plaintiff’s TCPA lawsuit in its entirety.
What were the facts of the case?
Factual and Procedural Background of This TCPA Lawsuit
Plaintiff alleged that in early 2018, she received over 240 unsolicited, autodialed text messages from Defendant. Ms. Gerrard claimed to have received approximately 210 of those text messages within a single day. Most of the messages contained exactly the same job opportunity message: “Hi, Superior Group has [a] job opening for Material Handler/Production Operator at Buffalo Grove, [Illinois]. Contract Position.” Although Plaintiff allegedly responded to the messages and told the sender to “stop spamming [her] phone,” the text messages continued. Some of the messages directed Plaintiff to “call/text Amy” at a specific phone number if Plaintiff was interested in the job opportunity. Plaintiff alleged that because the subject text messages were sent without her consent and through use of an automatic telephone dialing system (“ATDS”), they violated the TCPA.
| Your education on compliance with Internet, telemarketing, and trademark law should begin with a discussion between you and an experienced attorney. Scheduling a free consultation with Klein Moynihan Turco is a great place to start. |
Decision of the Court
Defendant moved to dismiss the complaint, arguing that, even accepting the allegations as true, Plaintiff received “informational employment opportunity messages,” which did not constitute advertising or telemarketing within the meaning of the TCPA and its regulations. The United States Magistrate Judge issued a Report and Recommendation for the Court to deny Defendant’s motion. The Court, after reviewing the Report and Recommendation de novo, disagreed with the Magistrate Judge and held that the text messages at issue did not constitute advertisements and, therefore, dismissed the complaint.
In arriving at its decision, the Court focused on the TCPA regulation (47 C.F.R § 64.1200(a)) which prohibits a person from initiating a non-emergency call to a cellular telephone “that includes or introduces an advertisement or constitutes telemarketing, using an [ATDS] . . . [without obtaining] prior express written consent of the called party . . . .” The TCPA’s regulations define an advertisement as “any material advertising the commercial availability or quality of any property, goods, or services.” The TCPA’s regulations similarly define telemarketing as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services . . . .“ Accordingly, the Court held that because the text messages in the complaint referenced a specific employment opportunity, they did not meet either the definition of “advertisement” or “telemarketing” within the meaning of the TCPA. As such, the Court dismissed Plaintiff’s complaint with prejudice.
Although the Court took pains to note that other courts have dismissed similar TCPA cases based upon employment offers, recruitment messages are not always so clear cut. As we have blogged in the past, messages discussing employment opportunities may result in TCPA liability. Accordingly, it is essential that businesses obtain proper consent prior to calling or texting potential job applicants. Similarly, businesses should ensure that every party in the text message campaign chain complies with the TCPA and other state and federal telemarketing laws.
As always, it is recommended that businesses work with experienced counsel to ensure telemarketing compliance in order to avoid costly TCPA lawsuits. If you need assistance developing a marketing campaign or if you have been named in a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
Attorney Advertising
Similar Blog Posts:
What is an Advertisement in a TCPA Fax Case?
U.S. Supreme Court Makes Monumental Ruling in TCPA Class Action Lawsuit
