Barton v. Walmart Inc
3:23-cv-05063
W.D. Wash.Apr 9, 2024Background
- Plaintiff Nathen Barton, proceeding pro se, sued Walmart Inc. under the Telephone Consumer Protection Act (TCPA) and Washington's Consumer Electronic Mail Act (CEMA) for sending texts regarding orders to a mobile number Barton acquired after it had previously belonged to another Walmart customer (I.M.).
- I.M. had registered her phone number for Walmart order updates and continued to receive order-related texts until she lost access to the number, which was subsequently reassigned to Barton.
- Barton received approximately 90 texts meant for I.M. about Walmart orders from September 2022 to February 2023, after which he added the number to the national do-not-call list and filed suit.
- Both parties moved for summary judgment and filed multiple motions to strike each other's evidence as irrelevant or improper.
- The text messages at issue included updates about order status, delivery, cancellations, and substitutions, but did not contain marketing or solicitations.
- Key factual disputes relevant to the statutory claims centered on whether the messages constituted “telephone solicitations” or “commercial text messages.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether texts violated TCPA as "telephone solicitations" | Texts from a for-profit entity are commercial in nature and constitute solicitations. | Texts were logistical updates about orders, not solicitations; did not encourage new purchases. | Not solicitations; texts were informational, not violative of TCPA. |
| Whether texts violated CEMA as "commercial text messages" | Any unsolicited text from Walmart is a commercial text and thus prohibited. | Texts were not sent to promote goods/services for sale; only order fulfillment messages. | Not commercial texts; did not promote sales as required by CEMA. |
| Effect of replying "STOP" (and continued messages) | Texted STOP, expected Walmart to cease all messages, not just for one order. | STOP only applies to messages about specific orders; continued texts tied to new orders placed by I.M. | STOP applied only to the relevant order, not all future messages. |
| Admissibility of challenged evidence in summary judgment | Walmart evidence on consent, damaged mitigation, and other context should be stricken; irrelevant to statutory analysis. | Plaintiff's extrinsic evidence (recordings, social media screenshots) should be stricken as outside the record or irrelevant. | Motions to strike granted/denied as appropriate; but did not affect outcome on merits. |
Key Cases Cited
- Chennette v. Porch.com, Inc., 50 F.4th 1217 (9th Cir. 2022) (explaining regulatory scheme for do-not-call list and TCPA soliciting restrictions)
- Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012) (articulating the 'common sense' approach in evaluating call/message purpose under TCPA)
- An Phan v. Agoda Co. Pte. Ltd., 351 F. Supp. 3d 1257 (N.D. Cal. 2018), aff'd, [citation="798 Fed. App'x 157"] (9th Cir. 2020) (mere inclusion of link to website in message does not transform informational communication into solicitation)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard)