January 28, 2021

Volume XI, Number 28

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Plaintiff’s TCPA Joyride Comes to a Swift End: Court Tosses Putative Text Message Class Action After Finding Plaintiff Consented by Texting “Joyride” to Opt In

Enter Plaintiff Renee Reese who claimed Defendant Marketron Broadcast Solutions violated the TCPA when it sent her a marketing text message about a concert.  Plaintiff had heard an ad on the radio inviting her to text “joyride” to enter a contest for tickets to a Tenashe concert– an artist I’ve never heard of probably because I’m old and lame and only listen to 90’s music (seriously, I had to Google her).  In response, Defendant sent a text confirming Plaintiff had been entered to win those concert tickets.

Plaintiff claimed that this text violated the TCPA because it was a solicitation that required her prior express written consent (which she didn’t provide), and because it did not contain opt-out instructions.  The Court made quick work of both claims in granting the Defendant’s motion to dismiss.

First, it held that the text message was not a solicitation, but per FCC rules, a permissible one-time informational text sent in direct response to a consumer’s inquiry.  Second, the Court held that Plaintiff had provided the requisite express consent by texting “joyride” to Defendant.  The text she received in response was therefore perfectly legal because it was “clearly related to the purpose for which plaintiff sent her initial message.”

Finally, the court held that a text message is not a prerecorded message.  Thus, because the FCC’s opt-out instruction rules only apply to prerecorded messages, Defendant was not required to include opt-out instructions in its texts.  Having said that, it’s still good practice to provide opt out instructions (i.e. text “STOP”), as illustrated by opt-out evader cases like Edible Arrangements.

This TCPA “joyride” sure ended quickly for Plaintiff and her lawyers.  And Plaintiff didn’t even get to walk away with those Tenashe tickets.

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Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VIII, Number 130
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About this Author

Artin Betpera, Class action litigation lawyer, Womble
Partner

Artin is a partner in the firm’s business litigation practice group.  Precise and analytic, Artin brings over a decade of experience to bear on complex litigation problems.

Artin adeptly manages significant volumes of litigation for some of the country’s largest banks and financial institutions, never losing sight of providing an exceptional level of service to his clients.  He has been a dedicated financial services litigator since starting the practice of law at ground-zero of the financial crisis, affording him with an unparalleled depth of...

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