Monday, March 27, 2017
Ninth Circuit Revives Action Against Company Sending Unwanted Text Messages
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday reinstated an action under the Telephone Consumer Protection Act, holding that text messages do not have to be sent “randomly” for the act to be violated.
The memorandum opinion reinstates an action brought by Ned Flores, a man who continued to receive three unsolicited text messages from the defendant, Adir International, LLC, after responding to each: “Stop.” He was charged by his cell phone service provider for each call received.
U.S. District Court Judge Andre Birotte Jr. of the Central District of California on July 15, 2015, dismissed Flores’s would-be class action without leave to amend, holding that the plaintiff had failed to adequately allege the defendant used an automatic telephone dialing system (ATDS).
“Plaintiff’s allegation that Defendant used an ATDS to contact him is based, in part, on the claim that the text messages he received were ‘generic.’ Plaintiff alleges that ‘none of the text messages mention Plaintiff directly.’ However, the fact that none of the text messages Plaintiff received included his name does not mean that they were ‘generic’ and ‘impersonal.’ To the contrary, Plaintiff affirmatively alleges Defendant’s text messages to him all included the same ‘Ref #’ to identify Plaintiff if he called Defendant back….Although these text messages do not refer to Plaintiff by name, they refer to Plaintiff indirectly, suggesting that Defendants attempts to contact him were anything but ‘random.’”
Friday’s memorandum opinion declared that “dialing equipment does not need to dial numbers or send text messages ‘randomly’ in order to qualify as an ATDS” under the act.
Rather, the opinion said, the statute merely requires that the system have the capacity “the equipment has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.”
Reversing and remanding, the court said that “[b]y properly applying the statutory definition, and by drawing on the court’s ‘judicial experience and common sense,’ it is reasonable to infer” that the equipment used by Adir had that capacity.
The case is Flores v. Adir International, LLC, No. 15-56260.
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