An Phan v. Agoda Co. Pte. Ltd.
351 F. Supp. 3d 1257
N.D. Cal.2018Background
- Plaintiff An Phan booked four hotel reservations through Agoda's website in 2016, provided his phone number, and agreed to Agoda's Terms of Use and Privacy Policy.
- After each booking Agoda (via third-party Clickatell) sent a confirmation text: "Good news! Your Agoda booking [number] is confirmed. Manage your booking with our free app http://app-agoda.com/GetTheApp."
- Agoda's Terms and Privacy Policy stated confirmation messages are transactional (not marketing) and informed users they would receive confirmation SMS; users could not opt out of these transactional texts but could separately opt into marketing.
- Plaintiff sued in California state court asserting a single claim under the TCPA; the case was removed to federal court and the Court considered Agoda's pre-certification motion for summary judgment.
- The sole disputed legal question was whether the texts constituted "advertising" or "telemarketing" under the TCPA (which would require prior express written consent) or were transactional (requiring only ordinary prior express consent).
- The district court concluded the messages were transactional, not advertising/telemarketing, and granted Agoda summary judgment because Phan had provided the lower-level express consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the texts were "advertising" or "telemarketing" under the TCPA | Messages promoted the app and were unnecessary after booking, so they advertised or marketed a separate product (app) | Messages were transactional: they confirmed ongoing bookings and directed recipient to manage that booking via the app; link was germane to the transaction | Texts were not advertising/telemarketing; they were transactional |
| Whether heightened "prior express written consent" was required | If messages are advertising/telemarketing, Agoda lacked the required written consent | Agoda obtained adequate consent because Phan knowingly provided his phone number and agreed to Terms/Privacy permitting confirmation SMS | Because messages were transactional, only ordinary express consent was needed; consent was given |
Key Cases Cited
- City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036 (9th Cir. 2014) (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (moving party's burden on summary judgment)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2013) (elements of a TCPA claim)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (texts are "calls" under the TCPA)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (consent is an affirmative defense; different consent standards by message content)
- Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012) (use common sense in assessing whether a message is advertising)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (insufficient to defeat summary judgment with a mere scintilla of evidence)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (no genuine issue for trial when record could not lead a rational trier of fact)