After receiving a text message from Defendant advertising Defendant’s products, Plaintiff texted “stop,” his request was acknowledged but Defendant sent him three more text advertisements over a nine day period. Apparently, feeling aggrieved by receipt of the three additional texts, Plaintiff filed a class action lawsuit, claiming that Defendant violated 47 C.F.R. § 64.1200(d), which requires that Parties making certain calls: (1) have written do-not-call procedures for maintaining a do-not-call list; (2) provide training to employees regarding the existence and use of the do-not-call list; (3) record and honor do-not-call requests within a specified period of time; and (4) maintain records of do-not-call requests that must be honored for five years. According to Plaintiff, Defendant’s failure to honor his opt-out request demonstrated that it: (1) had not instituted procedures for maintaining a list of people who did not want to receive text messages, (2) did not provide training to its personnel; and (3) did not maintain a stand-alone do-not-call list.
Defendant moved to dismiss the Complaint for failure to state a claim upon which relief can be granted, arguing, among other things, that Plaintiff had not plausibly alleged a violation of the TCPA, characterizing Plaintiff’s allegations as “conclusory,” “threadbare recitals of the elements of the action.” Granting Defendant’s Motion, the Court noted that:
To successfully plead a TCPA claim under § 64.1200(d), a Plaintiff must plausibly allege, “that the entity placing the calls failed to institute the proper procedures prior to the initiation of the call [. . .] The Amended Complaint, boiled down to its core allegations, asserts that [Defendant] sent three text messages to Plaintiff over a period of seven business days (and nine days total) after Plaintiff requested to opt-out of future text messages. Absent more, these allegations are insufficient to tip the scales in favor of plausibility because, as a matter of law, they do not allege an unreasonable delay in honoring Plaintiff’s opt-out request.
A copy of the Court’s order can be accessed by clicking here.
PartnerJoshua Threadcraft is a trial and class action attorney in Burr & Forman’s Financial Services Practice Group with more than two decades of experience during which he has served as first chair counsel in bench, jury trials and ...
