In re Jiffy Lube International, Inc., Text Spam Litigation
2012 U.S. Dist. LEXIS 31926
| S.D. Cal. | 2012Background
- Plaintiffs allege Heartland and TextMarks violated the TCPA by sending unauthorized text messages offering Jiffy Lube services.
- Heartland is a Jiffy Lube franchisee that hired TextMarks to perform the marketing campaign.
- Plaintiffs allege TextMarks used equipment capable of storing or generating numbers to be called and sent messages en masse via a short code without consent.
- Six named plaintiffs across Washington, California, and Missouri claim to have received the texts; class size is alleged to be thousands with cost barriers to individual actions.
- Heartland moved to dismiss the complaint and to compel arbitration for Cushnie; the United States intervened to defend TCPA's constitutionality.
- The court denied both the motion to dismiss and the motion to compel arbitration, allowing the TCPA claim to proceed and avoiding narrowing the arbitration scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Heartland is liable under the TCPA for TextMarks' texts | Heartland can be liable as the entity responsible for the campaign. | Heartland only hired TextMarks and did not send messages; vicarious liability is insufficient. | Heartland may be held liable under TCPA. |
| Whether vicarious liability has been sufficiently pleaded | Plaintiffs alleged Heartland directed the mass transmission and contracted TextMarks. | The complaint lacks specifics on control and relationship. | Pleadings support vicarious liability under the TCPA. |
| Whether prior express consent defeats TCPA liability | Some plaintiffs allegedly provided their numbers on invoices to Heartland. | Invoices are not alleged in the complaint and cannot be judicially noticed to defeat failure to plead consent. | Invoices not judicially noticed; consent allegations remain unresolved at dismissal. |
| Whether the complaint adequately pleads use of an auto-dialer | Texts were sent from an SMS short code by a machine capable of storing/producing numbers. | Lacks specifics like a short code for all plaintiffs; insufficient ATDS pleading. | Adequate ATDS pleading at the motion-to-dismiss stage; not required to prove short code for every plaintiff. |
| Whether the TCPA violates the First Amendment as overbroad | TCPA is a valid time/place/manner restriction on commercial speech with substantial government interest. | TCPA is overbroad, chilling ordinary device usage and speech. | First Amendment challenge fails; statute withstands overbreadth scrutiny. |
Key Cases Cited
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (liability extends to entities that control or direct the messages even if not the sender)
- Account Outsourcing, LLC v. Verizon Wireless, 329 F.Supp.2d 789 (M.D. La. 2004) (statutory vicarious liability and broad reach of TCPA provisions)
- Kramer v. Autobytel, Inc., 759 F.Supp.2d 1165 (N.D. Cal. 2010) (advertiser and broadcaster liability for TCPA text campaigns)
- Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998) (limitations on evidence considered in dismissal recordings; integration caution)
- Kenneally v. Bank of Nova Scotia, 711 F.Supp.2d 1174 (S.D. Cal. 2010) (documents not referenced in complaint cannot be used to defeat pleading)
- Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999 (N.D. Ill. 2010) (first amendment commercial speech considerations in TCPA context)
- Meyer v. Holley, 537 U.S. 280 (U.S. 2003) (employer liability framework for agents/independent contractors)
- Smith v. Steinkamp, 318 F.3d 775 (7th Cir. 2003) (limits to arbitration scope and practical consequences)
- Ward v. Rock Against Racism, 491 U.S. 781 (U.S. 1989) (government interest and narrowly tailored speech restrictions)
- Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999 (N.D. Ill. 2010) (commercial speech and time/place/manner considerations (duplicate entry kept for emphasis))