Text messages initiated by a user inviting friends to use a fashion-themed mobile app were not actionable against the operator of the app, a California federal court judge has determined.

Christopher Reichman alleged that Poshmark, a mobile app that allows users to browse, buy and sell clothing and accessories, sent him two text messages in 2015 inviting him to view and buy certain items. But the defendant countered that the texts were initiated and sent by Tricia Tolentino, a registered user of Poshmark and friend of Reichman.

Tolentino listed several clothing items for sale and then navigated to the "Find People" page, where she opted to have Poshmark send invitations to the contact list stored on her mobile device. Listed among Tolentino's contacts, Reichman received a text message containing an invitation "to view and buy the wares now being sold through Poshmark" along with a link to Tolentino's "closet." One week later, Tolentino repeated these steps and Reichman received a second message from the app.

He then sued Poshmark, alleging the app violated the Telephone Consumer Protection Act (TCPA). The defendant responded with a motion for summary judgment, arguing that it did not "make" the invitational text messages.

In determining whether an app or its user is the maker of a call, U.S. District Court Judge Dana M. Sabraw looked to the Federal Communications Commission's 2015 Declaratory Ruling and Order, where the agency considered different scenarios presented in the petitions of various messaging apps.

One of those app providers, TextMe, required several affirmative steps on the part of a user in order to send invitational text messages, leading the FCC to conclude that the user, not TextMe, was the maker of the text message.

Analogizing to the TextMe petition, the court explained that before a text message was sent by the app, Tolentino granted the app permission to access her contact list, tapped the "Find People" button, chose the "Find friends from your contacts" option, determined to invite all her contacts (as opposed to selecting specific contacts) and chose to send the invitational message by selecting the "Invite All" button.

"Based on these affirmative steps, it is apparent that Ms. Tolentino, not Defendant, took the action necessary to send the text messages," Judge Sabraw wrote. "Had Ms. Tolentino decided not to take any of these steps, a text message would not have been sent to Plaintiff."

Reichman tried to rebut this conclusion by telling the court that genuine issues of material fact remained, such as whether Poshmark adequately informed its users of the method in which invitational messages would be sent. But the defendant offered evidence demonstrating that the app indicates to users whether invitees will receive the invitational message by text or email, the court said, displaying a phone number or email address under each individual's name depending on the method of contact saved in the user's device.

"As a result, it is apparent to users that if they decide to invite a contact whose telephone number appears, then an invitation will be sent by text message rather than by e-mail," the court wrote. "In any event, whether Defendant informed its users regarding the method of invitation (text or email) is not material to determining who 'makes' a call under the TCPA."

The court granted Poshmark's motion for summary judgment.

To read the order in Reichman v. Poshmark, click here.

For further information on this topic please contact Christine Reilly at Manatt Phelps & Phillips LLP by telephone (+1 310 312 4000) or email ([email protected]). The Manatt Phelps & Phillips LLP website can be accessed at www.manatt.com‚Äč.

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