887 F. Supp. 2d 1125
W.D. Wash.2012Background
- Voxernet is a software application that turns a cell phone into a walkie-talkie.
- Plaintiff asserts Voxernet/Voxer used subscribers’ contact lists to send Voxer advertisements.
- A proposed national class and a Washington subclass were pled under federal TCPA and Washington CEMA/CPA theories.
- Plaintiff alleges December 2011 unsolicited text to his number via an automatic dialing system.
- The case was removed to federal court under the Class Action Fairness Act; Voxernet moves to dismiss with leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Voxer transmitted the disputed text message | Plaintiff sufficiently alleges Voxer sent the text | Voxernet claims transmission is not pled | Plaintiff adequately pled transmission by Voxer |
| Whether Voxer uses an ATDS under TCPA | Plaintiff pleads Voxer’s use of equipment to dial without human intervention | Defendant argues details are unclear | Plaintiff adequately pled ATDS use; discovery may reveal specifics |
| Whether CEMA claim is preempted or inadequately pled | CEMA not preempted and provides per se CPA basis | TCPA preemption or limited savings clause may apply | Preemption not available; however CEMA claim inadequate as pleaded and dismissed with leave to amend |
| Whether TCPA savings clause salvages CEMA claim | Savings clause protects intrastate/interstate prohibitions | Savings clause does not apply to prohibitions | Savings clause applies to prohibitions; TCPA does not preempt CEMA, but adequacy remains defect; dismissal with leave to amend |
Key Cases Cited
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (text messages are calls under TCPA; liability extends to control of sending)
- In re Jiffy Lube Int., Inc. Text Spam Litig., 847 F.Supp.2d 1253 (S.D. Cal. 2012) (liability can attach where third parties transmit the message under TCPA)
- Palmer v. Sprint Nextel Corp., 674 F.Supp.2d 1224 (W.D. Wash. 2009) (conflict preemption analysis; state ATDS ban not in direct conflict with TCPA)
- Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (Supreme Court 2000) (two-step preemption framework; obstacle to Congress’s objectives)