NJ Dance Club Fights TCPA Text Message Lawsuit

October 3, 2019

TCPA Text Message Lawsuit

On September 30, 2019, a federal district court for the District of New Jersey (the “Court”) denied a motion to dismiss based, in part, on the definition of automatic telephone dialing system (“ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”). In Rivero v. D’Jais, LLC, the plaintiff alleged that defendant D’Jais, LLC (“D’Jais”), a Jersey shore nightclub, used an ATDS to send him numerous text message advertisements without his consent. D’Jais moved to dismiss the amended complaint, arguing that the plaintiff failed to plead that the subject text messages were sent using an ATDS. After a thorough review of Third Circuit precedent, the Court denied the motion to dismiss the TCPA text message lawsuit.

What constitutes an ATDS under the TCPA?

Current ATDS Classification

The TCPA defines an ATDS as equipment that has the capacity to: “A) store or produce telephone numbers to be called, using a random or sequential number generator; and B) to dial such telephone numbers.”

In its motion to dismiss this TCPA text message lawsuit for failure to state a claim, D’Jais argued that the TCPA only banned calls made to numbers that were randomly or sequentially generated. Because Rivero did not allege that his telephone number was randomly or sequentially generated by the device used to send him the text messages at issue in the case, defendant maintained that the complaint failed to state a valid TCPA claim.

The Court denied defendant’s motion and allowed the case to proceed. The Court explained that D’Jais misinterpreted the Third Circuit’s 2018 decision in Dominguez v. Yahoo, 894 F.3d 116 (3d Cir. 2018). In Dominguez, the Third Circuit held that to constitute an ATDS under the TCPA, a device must have the “present capacity” to: 1) generate random or sequential telephone numbers; and 2) to call those numbers. Contrary to D’Jais’ argument, the Court explained that a TCPA violation occurs whenever an ATDS dials a consumer’s number without consent, regardless of whether that particular number was randomly or sequentially generated. Moreover, the Court reasoned, Rivero’s proposed interpretation of the TCPA would render the TCPA’s consent exception pointless – no business would ever randomly call a consumer who had consented to receive calls from the particular business.

Defending TCPA Text Message Claims on the Pleadings

D’Jais also argued that the complaint failed to state a claim under the TCPA because Plaintiff did “not allege that he is a not a customer of D’Jais . . . or that they are strangers.” The Court summarily dismissed this argument, explaining that, at the pleading stage, the inquiry is focused on whether the plaintiff was contacted using an ATDS. While pleadings in other cases have used the lack of relationship between the plaintiff and defendant to suggest that a call/text was made/sent using an ATDS, this was not strictly necessary. In the TCPA text message case before the Court, the complaint alleged that the plaintiff was contacted using a short code. This fact, along with the impersonal nature of the applicable text messages at issue, was sufficient to plead the use of an ATDS.

The holding in this case on the issue of what meets the definition of an ATDS (or an autodialer) under the TCPA highlights the split between circuits on whether: 1) random or sequentially generated numbers must be involved; and 2) “present capacity” is required; in order to 3) trigger a statutory claim. Until the Federal Communications Commission or the United States Supreme Court provides definitive guidance on the issue, telemarketers are advised to always obtain prior express written consent before calling or texting consumers via automated means.  If you are interested in learning more about this topic or want to review your telemarketing compliance practices, 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.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.
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