Gary v. TrueBlue, Inc.
2:17-cv-10544
| E.D. Mich. | Aug 1, 2018Background
- Plaintiff Kevin Gary (pro se) sued TrueBlue/PeopleReady alleging thousands of unsolicited WorkAlert text messages violated the TCPA by using an automatic telephone dialing system (ATDS) without consent.
- Gary signed a 2011 Labor Ready application containing an express-consent clause; he contends that consent expired in 2013 and that he repeatedly revoked consent (by texts, calls, and in-person), yet continued receiving texts.
- Defendant describes WorkAlert as a branch-driven platform: employees search/filter databases, optionally use saved “smart” or “fixed” groups, draft messages, and manually send texts; Defendant says the system cannot send job-notification texts without human initiation.
- The text log shows automated immediate replies to trigger words (e.g., “start”, “stop”) and multiple opt-ins/opt-outs; Defendant points to occasions where Gary texted “start” after opting out and to hundreds of job acceptances as manifestations of consent.
- Procedurally: Gary moved for summary judgment; Defendant sought an extension, deposed Gary (alleging evasive testimony), moved to compel further deposition (and sought fees). Court denied plaintiff’s summary judgment motion, granted Defendant’s motion to compel (but denied fees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WorkAlert is an ATDS under the TCPA | WorkAlert can dial from saved lists (fixed/smart groups) and sends automated replies, so it qualifies as an ATDS | WorkAlert requires human steps (search, edit, draft, click send); no capacity to generate/dial random or sequential numbers | Denied summary judgment: reasonable jurors could disagree; court concluded WorkAlert not an ATDS as a matter of law under the statute and plaintiff failed to show ATDS even under vacated FCC expansions |
| Whether plaintiff had prior express consent | Plaintiff argues 2011 written consent expired (per FCC rule changes) and that he revoked consent multiple times | Defendant says 2011 written consent remained (or was repeatedly re-affirmed by plaintiff’s conduct, e.g., texting “start” and accepting jobs) | Genuine factual dispute exists about consent and revocation; not appropriate for summary judgment in plaintiff’s favor |
| Whether messages are "telemarketing" (affecting consent rules) | Implied that stricter 2012 telemarketing consent rules should apply, rendering older consent insufficient | Defendant contends messages are employment notifications (not telemarketing), so less stringent consent rules apply and old consent may suffice | Court found a genuine dispute whether messages constitute telemarketing; cannot resolve as matter of law in plaintiff’s favor |
| Whether plaintiff is entitled to treble damages for willful/knowing violation | Plaintiff asserts willful/knowing conduct because he revoked consent and still received texts | Defendant contends consent existed or was re-affirmed and disputes knowing violation | Treble damages not appropriate on summary judgment because factual disputes about consent and notice of nonconsent remain |
Key Cases Cited
- Cehrs v. Ne. Ohio Alzheimer’s Research Ctr., 155 F.3d 775 (6th Cir. 1998) (summary judgment standard)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (U.S. 1986) (summary judgment evidence construed in nonmovant's favor)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (U.S. 1986) (genuine issue of material fact standard)
- ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacating portions of FCC’s ATDS interpretation)
- Sandusky Wellness Ctr., Ltd. Liab. Co. v. ASD Specialty Healthcare, Inc., 863 F.3d 460 (6th Cir. 2017) (treatment of vacated FCC rules)
- Peck v. Cingular Wireless, LLC, 535 F.3d 1053 (9th Cir. 2008) (consolidated petitions binding across circuits principle)
- Baisden v. Credit Adjustments, Inc., 813 F.3d 338 (6th Cir. 2016) (scope and forms of consent for non-telemarketing calls)