Reisman v. Gen Digital Incorporated
2:25-cv-01653
| D. Ariz. | Aug 21, 2025Background
- Plaintiff Eli Reisman filed a putative class action against Gen Digital Inc., alleging violations of the Telephone Consumer Protection Act (TCPA) for unsolicited telemarketing texts.
- Gen Digital operates multiple cybersecurity brands and utilizes third-party affiliates for marketing, which allegedly sent texts to the Plaintiff's cell phone registered on the National Do-Not-Call Registry.
- Plaintiff received nine unsolicited text messages between October and December 2023, each promoting Gen Digital products via hyperlinks.
- Gen Digital's counsel admitted some texts might be from affiliates and claimed such texts are forbidden by company policy, but acknowledged it has happened before.
- Plaintiff claims Gen Digital either directly sent or failed to stop affiliates from sending prohibited messages, citing identifying codes in URLs and Gen’s knowledge of past misconduct.
- Gen Digital moved to dismiss, arguing insufficient pleading of its direct or vicarious liability under TCPA; Plaintiff amended the complaint accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff adequately pled Gen Digital’s direct liability under TCPA | Gen Digital directly sent some of the texts; lack of affiliate codes and direct marketing practices support plausibility | Complaint lacks sufficient, non-conclusory facts that Gen Digital itself sent any messages | Plaintiff's allegations, construed in his favor, are plausible for direct liability |
| Whether identifying affiliate codes are dispositive | Absence of affiliate codes shows direct action by Gen Digital | No basis to infer sender just because of code presence or absence | Court finds the logic plausible at pleading stage |
| Weight of Gen Digital’s policy and counsel’s denial | Prior incidents and knowledge show acquiescence or deliberate indifference | Gen Digital prohibits such texts and responded appropriately when notified | Court cannot credit defendant’s assertion at motion to dismiss stage |
| Sufficiency of vicarious liability pleading | Adequately pled as an alternative theory | Plaintiff failed to allege facts showing agency or control | Direct liability is sufficiently pled; court need not reach vicarious liability at this stage |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (sets notice pleading requirement and plausibility standard for surviving a motion to dismiss)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (clarifies plausibility pleading standard)
- Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012) (applies practical common sense in TCPA/direct liability pleading)
- Cousins v. Lockyer, 568 F.3d 1063 (9th Cir. 2009) (review standard for motion to dismiss—allegations considered true and construed favorably to plaintiff)
- Balistreri v. Pacifica Police Dep’t, 901 F.2d 696 (9th Cir. 1990) (grounds for motion to dismiss—lack of legal theory or insufficient facts)