On December 13, 2018, Judge Beth Labson Freeman of the Northern District of California granted a pre-class certification motion for summary judgmentin favor of a defendant travel agency who had sent text messages that confirmed travel reservations.  Phan v. Agoda Company Pte. Ltd., No. 16-cv-7243-BLF, slip op. (N.D. Cal. Dec. 13, 2018).  Plaintiff An Phan made four travel arrangements through Agoda, after which he received text messages that confirmed his reservation and provided him a link to Agoda’s app where he could manage his reservation.  Id. at 3.  Phan voluntarily provided his phone number to Agoda and agreed to Agoda’s Terms of Use and Privacy Policy, which stated that Agoda would send these types of text messages.  Id. at 13.  The issue in dispute was whether the text messages were advertising or telemarketing under the TCPA.  Id. at 1.  If they were, heightened consent requirements would apply.  Id. at 5.

Judge Freeman granted Agoda’s motion because she found that “the messages were neither advertising nor telemarketing and Agoda received prior express consent from Phan.”  Id. at 13.  Thus, Agoda was entitled to judgment as a matter of law based on the affirmative defense of consent.  Id.  Phan argued that the text messages were advertising or telemarketing because the transactions were complete when he booked the reservations, so the messages were not part of the transactions.  Id. at 7.  Additionally, Agoda designed the messages to encourage use of the app, which was meant for users to purchase more travel reservations.  Id.  Judge Freeman rejected Phan’s arguments because the context and content of the messages show that the messages were neither advertising nor telemarketing.  Id. at 10.  Contextually, the messages were part of an ongoing transaction between Phan and Agoda because Phan could modify or cancel his reservations until he finished traveling.  Id.  Regarding content, the plain language of each message merely confirmed the reservation and encouraged Phan to manage his reservation through the app.  Id. at 11.  The messages did not encourage the purchase of Agoda’s services or advertise the app’s commercial availability.  Id. at 12.  Judge Freeman concluded that the messages’ purpose “was directly cabined to facilitating and completing an existing transaction.”  Id. at 11.