Kristensen v. Credit Payment Services
12 F. Supp. 3d 1292
D. Nev.2014Background
- Plaintiff Flemming Kristensen alleges he received an unsolicited automated text offering payday loans that included a link (www.lend5k.com) which redirected to sites controlled by defendants; he did not consent and alleges the text was sent via an ATDS in violation of the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii).
- Kristensen amended to add Enova and Pioneer (lender defendants), LeadPile (lead broker), and Click Media (affiliate/marketing operator); theory: lenders contracted with LeadPile, which contracted with Click Media, which directed affiliates to send mass texts that generated leads sold back to lenders.
- Key factual allegations: texts sent from dedicated numbers using equipment capable of storing/producing numbers and dialing them; links redirected through Click Media/LeadPile sites; leads flowed "uphill" to lenders; Kristensen lacked consent.
- Click Media and LeadPile moved to dismiss for failure to plead that they (or their agents) sent the text; Kristensen argued vicarious liability under the TCPA is governed by federal common-law agency (per the FCC) and that pleading need only plausibly infer agency or ratification.
- The court applied Twombly/Iqbal plausibility standards, the FCC’s 2013 TCPA Declaratory Ruling (as Skidmore-deferable), and traditional federal agency principles (actual, apparent authority, and ratification) and found the FAC pleaded sufficient facts to infer agency/ratification and lack of consent and use of an ATDS.
- Rulings: motions to dismiss by Click Media and LeadPile denied; class certification granted for all persons sent texts from three specified numbers between Dec. 5, 2011 and Jan. 11, 2012; Edelson PLC appointed class counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FAC plausibly alleges defendants or their agents "made" the TCPA call (vicarious liability) | Kristensen: TCPA vicarious liability governed by federal common-law agency; need only plead facts permitting inference that texts were sent on defendants' behalf or that defendants benefited/ratified | Click Media/LeadPile: plaintiff failed to plead identity of sender or agency facts; Twombly/Iqbal require more than conjecture | Denied motions to dismiss — FAC pleads plausible agency via contractual chains, apparent authority, and ratification; agency is typically a fact question |
| Whether plaintiff sufficiently alleged lack of prior express consent | Kristensen: alleges no consent; consent can be proved class-wide and defendants have no record evidence of consent | Defendants: proving consent may require individualized inquiries making class treatment improper | Court: lack of evidence of consent makes lack-of-consent a common issue amenable to class-wide proof; individualized inquiries can be managed or addressed later |
| Whether the messages were sent using an ATDS | Kristensen: alleges texts were sent en masse via equipment that could store/produce numbers and dial using random/sequential generator | Defendants: challenged sufficiency of pleading regarding equipment capability | Court: FAC sufficiently alleges use of an ATDS for pleading purposes |
| Whether class certification requirements are met (ascertainability, Rule 23(a), Rule 23(b)(3)) | Kristensen: proposed class (recipients from three numbers during specified period) is ascertainable via carrier records; common issues (ATDS, vicarious liability, consent) predominate; superiority satisfied given small per-person damages | Defendants: contest numerosity, commonality, manageability, and individualized consent issues | Granted — class certified (98,779 recipients per T-Mobile data); numerosity, typicality, adequacy, predominance and superiority satisfied; court retains power to address individualized consent evidence later |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim under Twombly)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for complaints)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir.) (text messages are "calls" under the TCPA)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir.) (TCPA elements and class certification context)
- Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) (class certification requires affirmative demonstration of Rule 23 prerequisites)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (commonality and capacity to generate common answers for class treatment)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (administrative interpretations may merit respect under Skidmore deference)