On April 18, 2013, Judge George H. Wu of the U.S. District Court for the Central District of California dismissed potentially costly class action claims against the Los Angeles Lakers in Emanuel v. Los Angeles Lakers, Case No. CV-12-9936-GW (C.D. Cal. Apr. 18, 2013), at the pleading stage.
In Emanuel, Judge Wu closely evaluated plaintiff’s class claims under the Telephone Consumer Protection Act (“TCPA”) at the outset of litigation and, applying a common sense approach, found them insufficient to warrant discovery.
We previously have reported other successful attempts to defeat class claims at the pleading stage (read more here). Although not a workplace class action, Emanuel demonstrates that pleading stage attacks are tactics that employers should keep in their arsenals for use in appropriate cases.
Plaintiff David Emanuel filed a putative class action against the Los Angeles Lakers claiming that the team violated the TCPA by sending him and others unsolicited text messages. Id. at 1.
During a Lakers game on October 13, 2012, the team displayed the following message at the Staples Center: “TEXT your message to 525377.” Id. After seeing the message, Plaintiff sent a text message: “I love you Facey. Happy Date Night” to the Lakers “for the sole purpose of having Defendant put a personal message on the scoreboard.” Id.
Shortly thereafter, Plaintiff allegedly received an “unsolicited text message” from the same number: “Thnx! Txt as many times as u like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts Msg&Data Rates May Apply. Txt STOP to quit. Txt INFO for info.” Id.
Plaintiff claimed that the Lakers used an automatic telephone dialing system to generate the text and did so “to attempt to solicit business” from Plaintiff. Id. Defendant moved to dismiss and, in the alternative, for summary judgment.
The Court’s Opinion
The Court granted Defendant’s motion to dismiss with prejudice finding that the challenged message was not actionable under the TCPA.
To state a claim under the TCPA, plaintiff must allege that (1) defendant called a cellular telephone number, (2) using an automatic telephone dialing system, (3) without the recipient’s prior express consent. Id. at 2. Penalties for certain TCPA violations begin at $500 and can be tripled to $1,500 for each unsolicited text message.
Applying a “common sense” reading of the TCPA, the Court found that, by sending his original message, Plaintiff “expressly consented” to receiving a confirmatory text message from the Lakers. Id.
The Court noted that, indeed, when Plaintiff sought to display his love for “Facey” on the Staples Center jumbotron via text, “it is difficult to imagine how he could have been certain that the Lakers received his message without a confirmative response.” Id.
Further, while the impact of Defendant’s message is not crucial for a TCPA analysis, the Court noted that, by informing Plaintiff that “not all msgs go on screen,” Defendant’s message “provided Plaintiff with information relevant to his request.” Id. at 3.
Sending unsolicited text messages can be a costly violation of the TCPA, with fines ranging from $500 to $1,500 for each unsolicited message. Emanuel demonstrates that, in some cases, courts will apply common sense in the class action context. And defendants can use pleading-stage attacks to rid themselves of costly class litigation, under the TCPA or otherwise, at the earliest opportunity, before incurring the expense of class-wide discovery.