Reardon v. Uber Technologies, Inc.
115 F. Supp. 3d 1090
N.D. Cal.2015Background
- Plaintiffs (seven named) brought a putative TCPA class action alleging Uber sent recruiting text messages without their prior express consent; some plaintiffs allege messages continued after they revoked consent.
- Plaintiffs split into Class A (two individuals who never interacted with Uber) and Class B (five individuals who began Uber driver applications; only one completed the application).
- Uber moved to dismiss Class B claims, arguing that providing phone numbers during the application process constituted "prior express consent" under the TCPA (an affirmative defense apparent on the face of the complaint).
- The central legal questions were (1) whether the recruiting texts constituted "advertising/telemarketing" (which would require prior express written consent) and (2) whether providing a phone number during an incomplete online application qualifies as "providing" the number (i.e., prior express consent).
- The Court treated the complaint allegations as true, requested supplemental briefing about what it means to have "provided" a number per FCC precedent, and considered whether plaintiffs effectively revoked consent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recruiting texts are "advertising" or "telemarketing" under TCPA | Texts are recruiting/job-related, not ads promoting goods/services | Texts are not ads; even if commercial, they are recruitment messages outside the advertisement/telemarketing definitions | Held: Texts are recruiting messages, not advertisements/telemarketing; only prior express consent (not written) is required |
| Whether providing phone number during (incomplete) driver application = prior express consent | Starting but not completing application does not show knowing release/"providing" number | Submission of number during application process constitutes prior express consent | Held: For the plaintiff who completed the application (Reardon) consent is established; for those who only began but did not complete, the face of the complaint does not show they "provided" their numbers — denial of dismissal as to those plaintiffs |
| Whether FCC precedent equates giving a number with consent | Plaintiffs urge a stricter reading of "express" consent (must be clear/unmistakable) | Uber relies on 1992 FCC Order (and subsequent FCC guidance) that providing number constitutes consent | Held: Court follows FCC interpretation that giving a number (knowingly releasing it) can constitute express consent; but whether each plaintiff did so is a factual question not resolved on the complaint for most Class B plaintiffs |
| Whether consent can be revoked and texts after revocation violate TCPA | Plaintiffs (Grindell, Reilly, Bartolet) allege they revoked consent and still received texts | Uber argues messages prior to revocation are insulated by prior consent | Held: Consent can be revoked; plaintiffs' allegations of revocation suffice to survive dismissal as to post-revocation messages |
Key Cases Cited
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (defines "express consent" as clearly and unmistakably stated)
- Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012) (distinguishes recruitment/relationship communications from commercial advertising)
- Van Patten v. Vertical Fitness Grp., LLC, 22 F.3d 1069 (Note: cited in opinion as 22 F.Supp.3d 1069) (discusses prior express consent as a complete defense under the TCPA)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir. 2014) (holding that making number available and authorizing disclosure can amount to prior express consent)
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) (consent under TCPA can be revoked)
- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (consent revocable; calls after revocation may violate TCPA)