DLA Piper secures victory in TCPA putative class action

10 May, 2013

DLA Piper achieved a victory for The Los Angeles Lakers, Inc. in a putative class action brought by a ticket holder accusing the basketball franchise of sending unsolicited text messages.

Judge George H. Wu of the US District Court for the Central District of California ruled that the text message plaintiff David Emanuel allegedly received was not actionable under the Telephone Consumer Protection Act (TCPA) because the plaintiff voluntarily provided his phone number. Judge Wu dismissed the lawsuit with prejudice, ruling the plaintiff expressly consented to receiving a text from the team by first texting the Lakers a message that he hoped would appear on the Staples Center scoreboard.

Adopting a “common sense” application of the TCPA, the court held that the text message the plaintiff received in response to his initial text message, which merely informed the plaintiff that his message had been received, was not actionable under the TCPA. The court’s ruling is significant. Prior to this ruling, the US District Court for the Southern District of California had twice held that a single, “confirmatory” text message in response to an opt-out request from a plaintiff was not actionable (Ibey v. Taco Bell Corp. andRyabyshchuck v. Citibank). Interpreting the Federal Communications Commission’s guiding rules and regulations, and expanding on this line of cases, the court clarified that a text message indicating that a consumer’s request had been received (outside the context of an opt-out request) is also “confirmatory” and not actionable under the TCPA. This is the first decision of its kind in California. 

In the last several years, plaintiffs’ lawyers have flooded court dockets with class action suits alleging TCPA violations. Due to statutory damages, which can range from $500 and up to $1,500 per statutory violation, a TCPA class action suit puts a defendant at risk of significant exposure that can range into the tens of millions of dollars. The Lakers’ decision confirms, however, that not every call or text message constitutes a violation and that courts will take a hard look at context, social practice, and common sense when evaluating the merits of a case.

The DLA Piper team representing The Los Angeles Lakers, Inc. was led by Perrie Weiner and Joshua Briones and included Esteban Morales and Ben Turner.

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