20 F. Supp. 3d 1370
S.D. Fla.2014Background
- VMG sent text-message advertisements to Legg under its alert services via Phaz2 systems.
- Phaz2 stored subscriber numbers and handled transmission of VMG’s broadcasts.
- Legg attempted to unsubscribe in mid-2013 but continued receiving messages.
- Legg filed TCPA suit on September 20, 2013, asserting violations by VMG.
- VMG and Legg cross-moved for summary judgment; the court denied in part and granted in part.
- The court’s rulings focused on ATDS, vicarious liability for Phaz2, and VMG’s affirmative defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| ATDS was used to send the messages? | Legg argues FCC definition applies; evidence shows automated sending. | VMG argues no ATDS was proven and FCC guidance may not apply. | Questions of fact remain; no summary judgment on ATDS. |
| Whether VMG is vicariously liable for Phaz2’s messages? | Legg asserts agency relationship supports liability. | VMG contends lack of clear agency; contract labels independent contractor. | Questions of fact; summary judgment denied for VMG on vicarious liability. |
| Legg's Motion: defenses related to established business relationship, consent, due process | Legg seeks judgment that defenses are invalid. | VMG contends defenses may have merit. | Legg granted summary judgment on these three defenses; remaining defenses survive. |
| Damages due process concerns related to TCPA penalties | Due process issues potentially bar damages. | TCPA damages constitutional; premised on class status. | Damages due process challenge not precluded; issue deferred pending liability. |
Key Cases Cited
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) (text messages count as calls under TCPA)
- In re Rules & Regulations Implementing the TCPA, 18 FCC Rcd 14014 (FCC 2003), 18 FCC Rcd 14014 (FCC 2003) (ATDS includes capacity to dial without human intervention; predictive dialers fall within scope)
- Lardner v. Diversified Consultants, Inc., 17 F. Supp. 3d 1215 (S.D. Fla. 2014) (systems that automatically dial from a preprogrammed list can be ATDS)
- Hickey v. Voxernet LLC, 887 F. Supp. 2d 1125 (W.D. Wash. 2012) (courts address ATDS definition under FCC guidance)
- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (consent revocation via opt-out; subsequent texts may violate TCPA)