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Court Finds Website Owner Did Not Send Text Messages Initiated By Its Users And Thus Did Not Violate The TCPA

In a recent decision, the U.S. District Court for the Northern District of Illinois found that the host of an automobile website did not violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), by providing its users a platform to send automated text messages regarding car listings.  In Serban v. CarGurus, Inc., Case No. 1:16-cv-02531 (N.D. Ill. Mar. 12, 2018), a user of the defendant’s website mistyped her telephone number when attempting to send herself a car listing.  In doing so, the user performed a multi-step process—including selecting the “Send to Phone” option, entering the telephone number, and clicking a “Send” button—to generate a text message automatically created by CarGurus based on the car selected.  As a result of the mistyped telephone number, the text message was transmitted to the plaintiff rather than the user.

In concluding that CarGurus did not violate the TCPA, the Court reasoned that the account user, rather than CarGurus, “initiated” and thus sent the text message. The account user inputted the telephone number to receive the message, selected the specific listing to send to the number, and actively completed the steps necessary to send the message. Despite providing the template for the message and owning the shortcode used to send the text messages through a third-party message aggregator, CarGurus merely executed the user’s request as an intermediary to facilitate the message. In light of the undisputed facts regarding the account user’s involvement, the Court granted summary judgment in favor of CarGurus.

Copyright 2020 K & L GatesNational Law Review, Volume VIII, Number 81


About this Author

Andrew Glass, KL Gates Law Firm, Financial Litigation Attorney

Mr. Glass is a partner resident in K&L Gates’ Boston office, and a member of the firm's Consumer Financial Services Litigation and Class Action Litigation Defense groups, with extensive experience in complex commercial litigation. Mr. Glass's practice focuses on the defense of federal and state class action litigation brought against consumer financial services, mortgage lending, and consumer credit institutions. These class actions concern challenges under federal statutes, including the Fair Housing Act, Equal Credit Opportunity Act, Fair Credit Reporting Act, Real...

Gregory Blace, KL Gates Law Firm, Class Action Litigation Attorney

Mr. Blase is a partner in the Boston office of K&L Gates where he is a member of the firm's Class Action Litigation Defense group. Mr. Blase has experience in complex commercial litigation, and has represented mortgage lenders, servicers and other financial institutions in class action and individual suits under the Telephone Consumer Protection Act, Fair Credit Reporting Act, Fair Debt Collection Practices Act, Truth in Lending Act, Fair Housing Act, Equal Credit Opportunity Act, Real Estate Settlement Procedures Act, and various state unfair and deceptive practices statutes.

Roger Smerage, KLGates Law Firm, Commercial Disputes Attorney

Roger Smerage is an associate in the commercial disputes group of the Boston office of K&L Gates. He concentrates his practice in class action litigation and financial institutions and services litigation. Mr. Smerage’s experience includes representing mortgage lenders, banks, loan servicers, and other consumer financial services institutions, as well as wireless telephone companies, computer software developers, and energy providers, in class action and individual litigation matters. He has represented a variety of corporate and individual clients in contract, tort...

Matthew Houston, Complex Commercial Disputes Attorney, KL Gates Law Firm

Matthew Houston is an associate in the Raleigh office and focuses his practice on complex commercial disputes, with an emphasis on financial services litigation, contract disputes, and corporate restructuring and bankruptcy. His practice also encompasses labor and employment and real estate litigation matters.

Mr. Houston’s experience includes litigating and resolving a variety of commercial contract disputes, representing lenders in litigation and loan workout matters, advising and representing secured and unsecured creditors in bankruptcy...