Restaurant Owner Escapes Reservation Text Suit
Court throws out undercooked TCPA class action
When Steve McKinnon made a reservation at Lucille’s Smokehouse Bar-B-Que in Rocklin, California, he was likely looking forward to the BBQ Sausage Trio, or the Mardi Gras chicken, or the Brisket Nachos. (Can we forget the rest of the article and head out? We’re starving.)
What he might not have expected was that his trip would turn into a class action that centered on a text he received from the restaurant, confirming his reservation:
“Welcome to Lucilles Rocklin!
Your reservation for 2 is set for 6:00 pm on 4/20/2017.
While the text seems innocuous enough, for McKinnon it was enough to spur a class action under the Telephone Consumer Protection Act (TCPA). McKinnon claimed that the text introduced advertising to the reservation confirmation and therefore violated the TCPA because he had not consented to marketing texts, only to seating time update texts.
Hof’s Hut Restaurants, the owner of Lucille’s Smokehouse, moved to dismiss the case, and the Eastern District of California agreed in a November 2017 order. According to the court, the entire case hinged on whether or not the text was advertising.
In an elegantly reasoned order, the court first found that “the text message confirming Plaintiff’s dinner reservation does not constitute telemarketing or advertising because it is informative and non-telemarketing in nature.” Messages that merely provide information about the consequences of offers, or that are sent to confirm or facilitate a previously agreed-to commercial transaction, are not advertising. More important, the court also found that the second portion of the text, offering to share dinner specials with a confirmed customer, does not constitute an ad. The court argues that the “View specials” does not convert the text into an ad; it simply allowed the customer to view specials for the reservation he made before sitting down for dinner.
To this point, the court dismantled McKinnon’s reference to Pedro-Salcedo v. Haagen-Dazs Shoppe Co., which included the following text:
“Thank you for joining Haagen-Dazs Rewards! Download our app here:..”
This text, the court stated, pointed to a different situation: The transaction was complete (in this case, the awards program had been joined) and did not require an additional text message. But McKinnon’s dinner was forthcoming when the text was sent, so Pedro-Salcedo did not apply.
The court concluded by noting that since Lucille’s text was not an advertisement, the only consent required was express, not written, which McKinnon granted to the restaurant when he provided his phone number in the initial reservation request. And since consent was given, “the inquiry ends”; questions about the nature of the dialing system or whether or not claims like McKinnon’s were intended to be protected by the TCPA were rendered moot.
Notwithstanding the result in this case, companies that send informational texts are warned not to rely on this case in justifying mixed informational and marketing messages. The Federal Communications Commission has opined that an informational message must be wholly informational and not introduce any marketing or sales message. Other courts looking at somewhat similar allegedly mixed messages have come out the other way. If sending potentially mixed messages is important, the safer approach would be to get the level of consent that would satisfy a marketing message.