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Where's the Beef? Motion to Dismiss Granted Based on Emergency Exception & Extrinsic Evidence

Last week, the District Court for the Southern District of California granted a motion to dismiss without leave to amend in a putative class action lawsuit involving the emergency exception to the TCPA.

In Derrick v. Kroger Co., No. 3:19-cv-00106-AJB-MDD, 2019 U.S. Dist. LEXIS 135803 (S.D. Cal. Aug. 12, 2019), the plaintiff sued the grocery chain, Kroger, for alleged unauthorized marketing calls to him and putative class members using an ATDS.  Kroger did not dispute that it made the calls at issue, but it did dispute the purpose for why it made the calls.

Recall that the TCPA specifically excludes calls made for emergency purposes from its grasp. 47 U.S.C. § 227(b)(1)(A)(iii), (b)(1)(B); Kroger 2019 U.S. Dist. LEXIS 135803 at *4-5.  Further, the FCC defines “emergency purposes” as “any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4); Kroger 2019 U.S. Dist. LEXIS 135803 at *4-5.  Here, Kroger argued that the calls it made fall within the emergency exception to the TCPA because the calls “warned consumers about salmonella-tainted beef” and were “related to consumers’ injury or death.” Id. at *4.

To support the allegations, the plaintiff included quotes from online customer complaints regarding the calls, but instead of including full quotes from the online customer complaints, the plaintiff purposely omitted details. Id. at *5.  The quotes included in the complaint were:

1. “Automated call from Kroger . . .”

2. “annoying”

3. “When I answer, they hang up.”

4. “Call from Kroger stores . . .”

5. “I got the same one from Kroger. Problem is, we don't have a Kroger where I live.”

Ibid.  However, in its motion, Kroger included the full quotation for two of the five customer complaints. Ibid.  The full quotations are as follows:

1. Ivan — 6 Dec 2018 “Automated call from Kroger, requesting that you return ground beef that was purchased between August and September of 2018, due to the threat of salmonella. Stores would include Smith's, Ralph's, Baker's and other Kroger stores.”

4. Rizzo — 6 Dec 2018 “Call from Kroger stores advising that we purchased ground beef between Aug 15 & sept 10, 2018. If you still have any in your freezer, be sure you return it back to the KrogercStore [sic].”

Id. at *5-6.  The court interpreted these misrepresentations as the plaintiff’s attempt to make the calls seem more nefarious than they actually were. Ibid.  Kroger argued that the court could consider the quotations as evidence—despite this being a motion to dismiss—because the quotes are incorporated by reference in the plaintiff’s complaint. Id. at *6.

The Court agreed, concluding that the “complaint makes only conclusory allegations that the calls were done for marketing purposes, and even goes so far as to misrepresent information to the Court in doing so.” Ibid.  For those reasons, the court granted Kroger’s motion to dismiss the complaint.

Finally, with respect to whether the dismissal should be made with or without leave to amend, the court reasoned that “[h]ere, Kroger had a bona fide emergency in its tainted and potentially life-threatening beef, and thus called potential customers of that beef to warn them.” Id. at *7.  Therefore, the court determined that amendment would be futile in this scenario.

While the use of the emergency exception defense is not novel in TCPA cases, Kroger’s use of the external customer complaint quotes in a motion to dismiss proved to be a great strategic move.  Normally, extrinsic evidence is not permitted to support a party’s motion to dismiss, but Kroger got a bit creative here and it paid off.  It successfully alerted the court to the plaintiff’s shady tactics and essentially proved its defense using evidence in support of a motion to dismiss on its way to having a potentially costly putative class action complaint dismissed with prejudice.

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About this Author

Shane Micheil, Womble Bond Dickinson Law Firm, Orange County, Finance and Communications Litigation Attorney

Shane focuses his practice on commercial and financial services litigation.  He is part of a nationally-recognized team with broad experience defending financial institutions in cases involving the Telephone Consumer Protection Act.  He also has significant experience in Fair Credit Reporting Act cases. 

Shane’s experience includes serving as lead defense attorney for more than 20 single-plaintiff FCRA lawsuits in state and federal courts in multiple states. He also represented a major credit reporting agency in mediation of an FCRA case in the...