Jensen v. Capital One Financial Corporation
2:24-cv-00727
W.D. Wash.Feb 25, 2025Background
- Plaintiff Tamie Jensen received a pre-filled “Refer a Friend” promotional text message authored by Capital One via a third party, without having given consent.
- The “Refer a Friend” program prompts Capital One cardholders to send referral links via a message composed by Capital One, offering rewards for referrals.
- Jensen alleges the commercial text violated Washington’s Commercial Electronic Mail Act (CEMA) and, by extension, the Consumer Protection Act (CPA).
- Capital One moved to dismiss, asserting immunity under Section 230 of the Communications Decency Act (CDA), federal preemption under the National Bank Act (NBA), and that plaintiff failed to state a claim under CEMA.
- Defendant also moved to strike class allegations, arguing the class definition was fail-safe and lacked commonality.
- The court denied both the motion to dismiss and the motion to strike at this preliminary stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CDA Section 230 Immunity | Capital One authored the text, so not entitled to immunity | Only suggested content, so immune as a service provider | No immunity—Capital One authored the content |
| NBA Preemption | CEMA is a generally applicable state law, not preempted | CEMA restricts bank’s ability to market, so preempted | No preemption—CEMA does not significantly interfere |
| Sufficiency of CEMA/CPA Claim | Alleged Capital One substantially assisted in the sending | Only provided limited, non-substantial assistance | Sufficient—complaint plausibly alleges substantial assistance |
| Motion to Strike Class Allegations | Class properly defined; facts common to class | Class is a fail-safe and requires individual inquiries on consent | Denied as premature—will address at class certification |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (plausibility pleading standard for Rule 12(b)(6) motions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (standard for stating a claim to relief)
- Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (scope of Section 230 CDA immunity)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (CDA immunity when site does not author content)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (test for Section 230 immunity)
- Franklin Nat’l Bank of Franklin Square v. New York, 347 U.S. 374 (NBA preemption principles on significant interference)
- Anderson Nat’l Bank v. Luckett, 321 U.S. 233 (states’ power to regulate national banks where no undue burden)
- Watters v. Wachovia Bank, N.A., 550 U.S. 1 (federal banks subject to general state laws not conflicting with NBA)
- Gutierrez v. Wells Fargo Bank, NA, 704 F.3d 712 (standard for substantial interference under NBA)