Antitrust Law Daily Wrap Up, PRIVACY—D. Minn.: TCPA claim against SuperAmerica for sending promotional text messages survives motion to dismiss, (Aug 28, 2015)

By Michael Menzhuber, J.D., LL.M.

An individual sufficiently alleged facts to pursue a claim that the operators of SuperAmerica convenience stores violated the Telephone Consumer Protection Act (TCPA) by sending promotional text messages to his cell phone without express written consent, the federal district court in Minneapolis has decided (Soular v. Northern Tier Energy LP, August 25, 2015, Nelson, S.).

Background. Northern Tier Energy LP, Northern Tier Energy LLC, and Northern Tier Retail LLC d/b/a SuperAmerica (SA) operate SuperAmerica convenience stores in Minnesota and Wisconsin. In February 2015, Alex Soular filed a putative class action lawsuit, alleging that SA violated the TCPA when it sent the promotional text messages. Specifically, Soular claimed to have received numerous promotional text messages from SA even though he had never provided express written consent to receive those messages. He further claimed that similar messages were sent “en masse” to a list of thousands of wireless telephone numbers using a computerized automatic telephone dialing system and that these text calls were made “simultaneously” and “without human intervention.” SA moved to dismiss the complaint.

Automatic telephone dialing system (ATDS). Under the TCPA, it is unlawful for any person to make a call, without the prior express consent of the called party and using any automatic telephone dialing system (ATDS), to any telephone number assigned to a cell phone. SA argued that Soular merely recited the TCPA’s statutory language and failed to plead facts to support his assertion that SA used an ATDS to generate and send the text messages. SA further argued that Soular could not plead facts to support his claim because SA’s system did not have the capacity to store or generate numbers using a random or sequential number generator, or to send text messages to those numbers, without human intervention.

Soular contended an allegation that an ATDS was used was sufficient. Even if it were not, he alleged numerous additional facts from which it could be inferred that such a system was used: (1) the timeframe in which the messages were sent; (2) the fact that messages were sent “en masse” as part of promotional campaign; and (3) the messages were all sent from the same short code. The court agreed that Soular’s allegation that SA used an ATDS to send the text messages at issue was sufficient at this stage of the litigation. The additional facts Soular alleged in his complaint indicated the use of an ATDS.

Consent. SA argued that Soular had given prior express consent to receive the text messages when he first sent a text message to SA. The court found that SA’s arguments regarding consent were premised on an assertion based on the affidavit of its marketing director which could not be considered in a motion to dismiss and there were no allegations in Soular’s complaint from which the fact of consent could be inferred.

The court noted the dispute between SA and Soular as to the type of consent SA was required to obtain prior to sending text messages to Soular. Under a 1992 Order implementing the TCPA, persons who knowingly released their phone numbers were considered to have given their permission, absent instructions to the contrary, to be called at that number. The Federal Communications Commission (FCC) later issued a new order, effective October 16, 2013, which provided a new requirement of prior written consent. The order further stated that once the written consent rules became effective, an entity would no longer be able to rely on non-written forms of express consent to making autodialed or prerecorded voice telemarketing calls and could be liable for making such calls.

Soular argued that the new rule should apply. SA, on the other hand, argued that the 1992 Order should be applied because Soular’s first communication with SA occurred in September 2013, which was prior to the effective date of the new order. The court determined that, while the type of consent required might be a legal issue, it depended upon the resolution of several fact issues: (1) did Soular initiate contact with SA in September 2013; (2) if Soular did initiate contact with SA in September 2013, what was the content and context of the contact; (3) if the new order applied, did SA obtain some form of prior express written consent; and (4) did Soular’s purported September 2013 text message to SA constitute express written consent? The court concluded that these issues could not properly be resolved on a motion to dismiss because they were not evident on the face of the complaint.

The case is No. 15-CV-556 (SRN/LIB).

Attorneys: J. Gordon Rudd, Jr. (Zimmerman Reed, PLLP) for Alex Soular. Shawn M. Raiter (Larson King, LLP) for Northern Tier Energy LP, Northern Tier Energy LLC, Northern Tier Retail Holdings LLC, and Northern Tier Retail LLC.

Companies: Northern Tier Energy LP; Northern Tier Energy LLC; Northern Tier Retail Holdings LLC; Northern Tier Retail LLC

Cases: Privacy MinnesotaNews