December 6, 2021

Volume XI, Number 340

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December 06, 2021

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December 03, 2021

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Strip Club Beats TCPA Case With Human Intervention

The Sapphire Gentlemen’s Club in Las Vegas sends promotional text messages to its customers. Doing so involved multiple steps. First, a Club employee inputs telephone numbers into a mobile marketing website. He does this by either manually typing the number or by uploading or cutting and pasting an existing list of phone numbers to the website. Next, the Club employee types the message’s content, and designates the specific phone numbers to which the message would be sent. He would then click “Send” on the website in order to deliver the messages in real time or at some future date.

In a decision issued earlier this week, Magistrate Judge Howard R. Lloyd of the U.S. District Court for the Northern District of California ruled that this level of human intervention defeated plaintiff’s claim that the Club contacted him using automatic telephone dialing technology in violation of the Telephone Consumer Protection Act.

This decision is important because it interprets and relies upon the FCC’s July Declaratory Ruling and Order regarding the definition of an autodialer. In that order, the FCC refused to establish a bright line rule stating that any human intervention precludes a finding that a given piece of telephone equipment is an autodialer. Instead, the FCC stated that determination would have to made on a case-by-case basis.

In this case, the human intervention was significant. It was not simply limited to an act of uploading telephone numbers to a database as plaintiff claimed. It also involved drafting a message, determining the timing of the message and clicking “Send” to transmit the message. That was enough human intervention to carry the day for the Club. Summary judgment was granted in its favor.

© 2021 Foley & Lardner LLPNational Law Review, Volume V, Number 234
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About this Author

Michael Lueder, Partner, Litigation Attorney, Foley Lardner Law Firm
Partner

Michael Lueder is a partner and litigation attorney with Foley & Lardner LLP. His practice is concentrated in several areas, including Telephone Consumer Protection Act (“TCPA”), banking, class action, employment, and consumer litigation. Mr. Lueder is co-chair of the firm's Consumer Financial Services Practice. He is also a member of our Finance & Financial Institutions and Labor & Employment Practices and our Hospitality Industry Team. Prior to joining the firm, Mr. Lueder served as chief litigation counsel for one of the largest banks in the country.

414.297.5643
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