Reichman v. Poshmark, Inc.
3:16-cv-02359
| S.D. Cal. | May 15, 2017Background
- Plaintiff Christopher Reichman received two unsolicited text invitations to join Poshmark after a registered user (Tolentino) used Poshmark’s mobile app “Find People” feature and pressed an "Invite All" button.
- Tolentino had granted the app access to her phone contacts; the app displayed each contact’s phone number or email and offered ‘‘Invite All’’ or per-contact invite buttons.
- Messages were sent according to the contact method shown under each contact’s name; Reichman’s number resulted in SMS invites on January 18 and January 25, 2015.
- Reichman sued under the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), seeking class treatment for recipients of Poshmark’s invitational texts.
- Poshmark moved for early summary judgment, arguing it did not “make” or initiate the calls because the app user took the affirmative steps to send the invites.
- The court considered the FCC’s 2015 TCPA guidance distinguishing when an app provider versus an app user is the ‘‘maker’’ of a call and granted Poshmark summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Poshmark “made” (initiated) the texts under the TCPA | Reichman contends Poshmark is responsible for the texts sent via its app | Poshmark argues the app user (Tolentino) took affirmative steps (permissions, Find People, select Invite All) and thus was the maker | Court held Tolentino, not Poshmark, made the calls; summary judgment for Poshmark |
| Relevance of app disclosures about whether invite is text or email | Reichman suggests inadequate notice could create factual dispute | Poshmark shows the app displayed phone or email under each contact’s name | Court found disclosure not material to the maker inquiry; user choice controls |
| Whether Poshmark’s knowledge of unlawful use affects maker status | Reichman asserts knowledge/allowing unlawful use could make Poshmark liable | Poshmark showed no record evidence of having notice and the app required user steps | Court held speculative allegations insufficient; no genuine dispute on notice |
| Entitlement to discovery under Rule 56(d) | Reichman sought discovery on multiple topics (logs, Twilio role, communications) | Poshmark argued sufficient discovery had occurred and plaintiff didn’t show necessary facts exist | Court denied Rule 56(d) request: plaintiff failed to identify specific facts that would defeat summary judgment |
Key Cases Cited
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (summary judgment burden-shifting principles)
- Celotex Corp. v. Catrett, 477 U.S. 317 (summary judgment movant’s initial burden)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (evidentiary standard for genuine dispute)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (more than metaphysical doubt required)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (text messages are TCPA "calls" and deference to FCC guidance)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (Ninth Circuit approving FCC TCPA interpretation)
- Burlington N. Santa Fe R.R. v. Assiniboine & Sioux Tribes of Fort Peck Reservation, 323 F.3d 767 (Rule 56(d) discovery context)
- Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822 (requirements to obtain Rule 56(d) relief)