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Not A Relaxing Message: Plaintiff Defeats Motion to Dismiss Her TCPA Action Claiming Spa’s Use Of An ATDS To Send Text Advert

A decision last week from the Southern District of Florida illustrates the level of pleading detail necessary to survive dismissal of a TCPA claim predicated on the sending of text messages allegedly using an ATDS.  See Wijesinha v. S. Fla. Mgs, Case No. 19-cv-20744-UU2019 U.S. Dist. LEXIS 93030 (S.D. Fl. June 4, 2019).

Plaintiff had received services at the defendant’s spa location in 2018 during which she filled out an intake form that included her cell number.  Earlier this year, she received a text message promoting the spa, including a link advertising a “Valentine’s Day Special” and other products.  Plaintiff claims that she never authorized the text message and that it “caused her actual harm and disrupted her daily life.”  Setting aside our skepticism about how much an innocent text message from a business that someone once frequented could really “disrupt” their daily life, the decision itself focused on the alleged use of an ATDS.  Plaintiff contended that defendant used a system to send generic text messages en masse via a longcode, and that the texts were sent randomly or to sequentially-generated numbers without human intervention. The court determined that to the extent there was a question of fact on the use of an ATDS, that is something the court could consider on summary judgment, but that for pleading purposes, plaintiff’s complaint survived dismissal.   

While defendant had argued that plaintiff expressly consented to receiving messages when she voluntarily gave her cell phone number as part of their business relationship, the court treated this as an affirmative defense for which defendant bears the burden of proof, and accepted as true plaintiff’s allegation that she did not consent.  Consistent with prior Southern District of Florida precedent, the court also declined defendant’s motion to strike the class allegations based on its argument that the proposed class was an unascertainable fail-safe class.  The court concluded that it would only entertain arguments regarding the appropriateness of the class at the certification stage.

The only positive aspect of the decision from the defendant’s perspective was the court’s agreement that plaintiff had not alleged a likelihood of future injury and thus did not have standing to pursue a declaration that defendant’s practices violate the TCPA.

While it appears that Defendant has strong defenses in this matter and may very well prevail on the substance of the claim, the fact that plaintiff survived the motion to dismiss will only further incentivize claims against legitimate businesses which are simply seeking to market their goods and services.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Nicholas Zalany Commercial Litigation Attorney
Associate

Nicholas P. Zalany focuses his practice on general and complex commercial litigation matters, including in the areas of commercial contract disputes, business torts and insurance coverage disputes. Nick also provides legal counsel to insurance companies, trade associations and healthcare systems in matters involving insurance law and regulatory compliance.

Prior to joining the firm, Nick worked in both the private and public sectors, including as an associate in the Columbus office of a national boutique litigation firm and as a staff attorney for two Ohio state court judges. Before...

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