Pimental v. Google, Inc. et al

Filing 40

Memorandum in Oppositon re 29 Motion to Dismiss Consolidated Class Action Complaint filed by Jessica Franklin, Nicole Pimental. (Reis, Sean) (Filed on 11/11/2011) Modified on 11/14/2011 (jlm, COURT STAFF).

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SEAN P. REIS (SBN 184044)
([e-mail])
EDELSON MCGUIRE LLP
30021 Tomas Street, Suite 300
Rancho Santa Margarita, California 92688
Telephone: [phone]
Facsimile: [phone]
JORDAN L. LURIE (130013)
([e-mail])
JOEL E. ELKINS (256020)
([e-mail])
WEISS & LURIE
10940 Wilshire Blvd, 23rd Floor
Los Angeles, CA 90024
Telephone: [phone]
Facsimile: [phone]

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[Additional counsel appearing on signature page]

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Attorneys for Plaintiffs and the Putative Class

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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NICOLE PIMENTAL and JESSICA
FRANKLIN, individually and on behalf of
all others similarly situated,

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Plaintiffs,
v.
GOOGLE INC., a Delaware corporation,
and SLIDE, INC., a Delaware corporation,

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Defendants.

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS

11-cv-02585-SBA

Case No. 11-cv-02585-SBA
Consolidated with:
Case No. 11-cv-3333-SBA
PLAINTIFFS’ OPPOSITION TO
DEFENDANTS’ MOTION TO DISMISS
Date: February 28, 2012
Time: 1:00 p.m.
Place: Courtroom 1, 4th Floor
Judge: Hon. Sandra Brown Armstrong

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Table of Contents

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INTRODUCTION .........................................................................................................................1

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FACTUAL BACKGROUND........................................................................................................2

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ARGUMENT..................................................................................................................................4

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I.

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A. Defendants’ Disco Mobile App Text “does no more than propose a commercial
transaction.”..................................................................................................................5

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1. The Disco Mobile App Text is an advertisement ......................................................6

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2. The Disco Mobile App Text identifies a specific product.........................................7

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3. Defendants had an economic motivation in operating the Disco service ..................7

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B. Defendants’ Disco Mobile App Text messages are not an “informational”
communication..............................................................................................................8

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C. The Disco Mobile App Text is not “inextricably intertwined” with fully
protected speech ..........................................................................................................11

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II.

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CONSTRUING THE TCPA TO PROHIBIT THE DISCO MOBILE TEXT APP
WOULD NOT VIOLATE THE FIRST AMENDMENT ............................................12
A. Because Defendants’ messages are commercial speech, the test articulated in
Central Hudson governs Defendants’ as-applied challenge ....................................12
B. The TCPA, as applied to the Disco Mobile App Text, satisfies each element of
the Central Hudson test ............................................................................................ 14
1. The TCPA serves a significant governmental interest of minimizing the
invasion of privacy caused by unsolicited text message calls.................................14
2. The TCPA directly advances the government’s interest and its regulations are
not more restrictive than necessary .........................................................................16

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THE DISCO MOBILE APP TEXT IS COMMERCIAL SPEECH .............................4

III.

PLAINTIFF HAS SUFFICIENTLY PLEADED A TCPA VIOLATION..................18
A. Legal Standard Applicable to a Rule 12(b)(6) Motion ..............................................18
B. Plaintiff has sufficiently pleaded the use of an ATDS ..............................................19

CONCLUSION ............................................................................................................................22

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS

11-cv-02585-SBA

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Table of Authorities

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United States Supreme Court Cases:
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ................................................................................18, 19
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .............................................................18, 19
Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469 (1989) ............................................4, 12, 13
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) ..................................................4, 5, 6
Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557 (1980)..... passim
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993) ............................................16
Erickson v. Pardus, 551 U.S. 89 (2007) ........................................................................................19
Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781 (1988) ..................................11
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)........................................................12
Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................13,17
United States Circuit Court of Appeals Cases:
Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663 (7th Cir. 2007)...............19
Ass'n of Nat. Advertisers, Inc. v. Lungren, 44 F.3d 726 (9th Cir. 1994) .......................................16
Ballen v. City of Redmond, 466 F.3d 736 (9th Cir. 2006) .............................................................16
Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996) ...............................................................................15
Hedges v. United States, 404 F.3d 744 (3d Cir. 2005) ..................................................................19
Hunt v. City of Los Angeles, 638 F.3d 703 (9th Cir. 2011) .......................................................5, 11
Hays Cnty. Guardian v. Supple, 969 F.2d 111 (5th Cir.1992) ......................................................11
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 (9th Cir. 2008) ...................................19
Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002) ...................................................4
Missouri ex rel. Nixon v. Am. Blast Fax, Inc., 323 F.3d 649 (8th Cir. 2003) ................................16
Moser v. FCC, 46 F.3d 970 (9th Cir. 1995).......................................................................13, 14, 15
Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) .............................................8
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) ........................6, 15, 20, 21,22
Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000) ....................................................................12

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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United States District Court Cases

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Abbas v. Selling Source, LLC, (09 CV 3413) 2009 WL 4884471
(N.D. Ill. Dec. 14, 2009) ...............................................................................................14, 15,17, 21

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Coupons, Inc. v. Stottlemire, 588 F. Supp. 2d 1069 (N.D. Cal. 2008) ..........................................19

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Dex Media W., Inc. v. City of Seattle, --- F.Supp.2d ----, (C10-1857JLR)
2011 WL 2559391 (W.D. Wash. June 28, 2011).................................................................5, 11, 16

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Destination Ventures, Ltd. v. F.C.C., 844 F.Supp. 632 (D. Org. 1994)...................................16, 17

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Gomez v. Campbell-Ewald Co., (CV 10-2007 DMG CWX) 2010 WL 7345680
(C.D. Cal. 2010)...............................................................................................................................6

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Green v. Anthony Clark Int'l Ins. Brokers, Ltd., (09 C 1541) 2010 WL 431673
(N.D. Ill. Feb. 1, 2010)...................................................................................................................18
Green v. Serv. Master On Location Corp., (07 C 4705) 2009 WL 1810769
(N.D. Ill. June 22, 2009) ................................................................................................................20
Hinman v. M & M Rental Ctr., Inc., 596 F. Supp. 2d 1152 (N.D. Ill. 2009).................................20
Holtzman v. Turza, (08 C 2014) 2010 WL 4177150 (N.D. Ill. 2010) .............................................9
Italia Foods, Inc. v. Marinov Enterprises, Inc., (07 C 2494) 2007 WL 4117626
(N.D. Ill. Nov. 16, 2007)................................................................................................................14
Kazemi v. Payless Shoesource Inc., (C 09-5142 MHP) 2010 WL 963225
(N.D. Cal. Mar. 16, 2010)..................................................................................................19, 20, 21
Knutson v. Reply!, Inc., 2011 WL 291076 (S.D. Cal. Jan. 27, 2011) ............................................21
Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010) ....................................6, 19, 21
Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999 (N.D. Ill. 2010)........... passim
Peter Strojnik, P.C. v. Signalife, Inc., (CV081116PHXFJM) 2009 WL 605411
(D. Ariz. 2009).................................................................................................................................9
Sadowski v. MediOnline, LLC, (07 C 2973) 2008 WL 2224892
(N.D. Ill. May 27, 2008) ................................................................................................................20
Villegas v. J.P. Morgan Chase & Co., (C09-00261) 2009 WL 605833
(N.D. Cal., Mar. 9, 2009)...............................................................................................................19

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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Statutes & Miscellaneous

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47 U.S.C. § 227 et seq............................................................................................................ passim

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In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
18 F.C.C.R. 14014 (2003)..............................................................................................................15

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Notice of Proposed Rulemaking In the Matter of Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, 25 F.C.C.R. 1501, 2010 WL 276614
(Jan. 22, 2010)..................................................................................................................................9
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991;
Junk Fax Prevention Act of 2005, 71 FR 25967-01 (May 3, 2006) ..................................7, 8, 9, 10

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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INTRODUCTION

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In April 2011, Defendants Google, Inc. and Slide, Inc. jointly released the Disco

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group messaging service to allow groups of consumers to communicate with each other

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simultaneously via text message using their mobile phones. As part of their efforts to

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distribute their mobile application software to a wider audience, Defendants transmitted a

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promotional text message to every phone number submitted to them by so called “group

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creators” that advertised the application and provided a download link. Plaintiffs Nicole

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Pimental and Jessica Franklin both received these promotional text messages without having

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consented to Defendants contacting them at all, or requesting to participate in a Disco group

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in any manner.
As a result of receiving unsolicited text message advertisements from Defendants,

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Plaintiffs brought suit under the Telephone Consumer Protection Act, 47 U.S.C. §227, et seq.

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(“TCPA”) to stop Defendants’ wrongful conduct and recover damages owed to them.

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Defendants have moved to dismiss the single count Consolidated Complaint (“Complaint”)

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pursuant to Rule 12(b)(6). In support of dismissal, Defendants argue, inter alia, that the

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TCPA does not apply to the offending text messages because they are noncommercial and

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informational, and if the TCPA did apply to such messages, it would violate the First

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Amendment. Defendants further argue that Plaintiffs fail to sufficiently plead facts necessary

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to state a TCPA claim. As explained blow, Defendants’ arguments do not reflect an honest

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reading of the Complaint, and cannot withstand scrutiny.

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On their face, the offending text messages (defined in the Complaint as the “Disco

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Mobile App Text”) are purely commercial, and application of the TCPA to them would not

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violate the First Amendment. But, regardless of whether the messages are commercial in

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nature, the TCPA may restrict their transmission without implicating the First Amendment

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because the TCPA serves a substantial government interest, the statute directly advances that

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interest, and it is not more restrictive than necessary. Plaintiffs have also pleaded the facts

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS

11-cv-02585-SBA

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necessary to satisfy each element of their TCPA claim by alleging Defendants used a single,

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dedicated telephone number, to transmit generic, impersonal messages “en masse” to each

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person that found themselves part of a Disco group. Nothing additional need be pleaded to

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state a claim under the TCPA. Defendants’ motion to dismiss should be summarily denied.
FACTUAL BACKGROUND

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The meteoric rise of text message based communications has changed the face of how

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consumers interact with one another. Such communications have evolved from single

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person-to-person messages into robust “group text messaging” services that allow up to one

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hundred individuals to communicate in a “group chat” forum. (Compl. ¶ 11.) Defendants

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Google and Slide entered the group messaging business in April 2011 with their service

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named Disco. (Compl. ¶ 12.) The Disco service was designed to function through a mobile

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phone’s built-in text message capabilities, but Defendants additionally offered their own

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mobile phone application for transmitting messages. (Compl. ¶¶ 13, 14.)

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Defendants designed their Disco service to be “opt-out” rather than “opt-in.” (Compl.

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¶ 16.) In other words, anyone can create a Disco group through Defendants’ website and add

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any mobile phone number as a group member. (Compl. ¶ 14.) Defendants do not seek the

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consent of any new group members before adding them to a Disco group, nor does the group

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creator need to provide any proof of consent. (Compl. ¶ 15.) Once all group members

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receive a message, they too can respond to everyone else in the group an unlimited number

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of times, creating an ongoing “chat room” effect of nearly constant text messages. (Compl. ¶

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17.)

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However, the consumer-to-consumer messages are not the only messages transmitted

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by or through the Disco service. Instead, Defendants harvest all phone numbers added by

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group creators in order to independently transmit their own text message advertisements

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promoting their service and mobile application. (Compl. ¶ 20.) Indeed, the moment a

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consumer creates a Disco texting group, but before the group creator actually sends any

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group messages, every member of the group receives a text message sent directly by

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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Defendants without the consent of the group leader or the invitee. (Compl. ¶ 21.) The text

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message calls from Defendants include a specific advertisement for Disco’s service and

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mobile application – the Disco Mobile App Text. (Compl. ¶ 22.) The Disco Mobile App

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Text contains a direct link to download the Disco mobile application, and reads:

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Disco is a group texting service Standard SMS rates may apply or chat for
FREE w/our app - http://disco.com/d More info? Text *help to quit? Text
*leave

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(Compl. ¶ 25.) The initial Disco Mobile App Text is transmitted directly by Defendants to

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every group member, and its transmission is neither controlled by nor disclosed beforehand

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to the group leader or any group member. (Compl. ¶ 24.)

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Plaintiffs Nicole Pimental and Jessica Franklin were both involuntarily added to two

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different Disco groups in June 2011, and both received the Disco Mobile App Text from

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Defendants. (Compl. ¶¶ 25, 30.) Additionally, both Plaintiffs received numerous other text

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messages from other group members, as well as from Defendants, even after they attempted

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to remove themselves (i.e., opt-out) from the Disco group. (Compl. ¶¶ 27, 32-33.)

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Plaintiffs never requested, authorized, or consented to receive text message calls from

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Slide or Google. (Compl. ¶ 36.) In response to these unauthorized text message

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advertisements, Plaintiffs collectively brought this class action on behalf of other similarly

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situated individuals who received the Disco Mobile App Text from Defendants, as well as a

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subclass of individuals who continued to receive text message calls through the Disco service

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after they affirmatively requested to opt-out. (Compl. ¶ 36.)1 In response to Plaintiffs’

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Consolidated Complaint, Defendants moved to dismiss. (Dkt. 29.)

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Pimental filed her original class action complaint on May 27, 2011, and Plaintiff Franklin
filed her complaint on July 7, 2011; both cases were filed in the Northern District of
California. This Court consolidated both cases on September 22, 2011 (Dkt. 24), and the
Plaintiffs filed a Consolidated Complaint. (Dkt. 25.)
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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ARGUMENT
I.

THE DISCO MOBILE APP TEXT IS COMMERCIAL SPEECH

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Defendants’ principal argument in support of dismissal is that the TCPA is

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unconstitutional as applied to their “noncommercial” and “informational” SMS messages.

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(Defendants’ Motion to Dismiss (Dkt. 29) (“Def. Mot.”), 11.) Defendants further claim that

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their messages are “the direct result of conscious choice by users who want to create groups

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comprised of individuals of their own selection, with whom they wish to engage in

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expressive speech.” (Def. Mot. at 7.) That statement, however, willfully ignores the

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Complaint’s allegations in an attempt to conflate the commercial messages solely initiated by

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Defendants (i.e. the Disco Mobile App Text) with personal consumer-to-consumer messages.

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Plaintiffs’ Complaint expressly targets the Disco Mobile App Text.2 The Disco Mobile App

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Text, which Plaintiffs contend violate the TCPA, reads,
Disco is a group texting service Standard SMS rates may apply or chat for
FREE w/our app - http://disco.com/d More info? Text *help to quit? Text
*leave

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As described below, it is beyond dispute that the Disco Mobile App Text is commercial

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speech designed to promote Defendants’ Disco service and invite consumers to download the

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Disco mobile application.
Defendants’ attempt to reclassify the Disco Mobile App Text as a noncommercial and

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informational message utterly fails. The “core notion of commercial speech is that it ‘does

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no more than propose a commercial transaction.’” Mattel, Inc. v. MCA Records, Inc., 296

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F.3d 894, 906 (9th Cir. 2002) (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60,

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66 (1983)); see also Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 473–74 (1989)

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(stating that the proposal of a commercial transaction test is “the test for identifying

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commercial speech”). The Supreme Court has further defined commercial speech as

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“expression related solely to the economic interests of the speaker and its audience.” Central

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Plaintiffs are also seeking redress for text message calls made after they attempted, to no
avail, to affirmatively opt-out of receiving any further messages by or through the Disco
service. (Dkt. 24, ¶ 38.)
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 557, 561 (1980). In any

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event, any analysis of whether speech is commercial should rest on common sense – “the

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touchstone of the commercial speech doctrine” – and distinguish between “speech proposing

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a commercial transaction, which occurs in an area traditionally subject to government

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regulation, and other varieties of speech.” Dex Media W., Inc. v. City of Seattle, ---

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F.Supp.2d ----, (C10-1857JLR) 2011 WL 2559391, *3 (W.D. Wash. June 28, 2011) (citing

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Bolger, 463 U.S. at 64).

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Moreover, where the facts present a close question on what is or is not commercial

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speech, “‘strong support’ that the speech should be characterized as commercial speech is

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found [1] where the speech is an advertisement; [2] the speech refers to a particular product,

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and [3] the speaker has an economic motivation.” Hunt v. City of Los Angeles, 638 F.3d 703,

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715 (9th Cir. 2011) (citing Bolger, 463 U.S. at 66-67).

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A.

Defendants’ Disco Mobile App Text “does no more than propose a
commercial transaction.”

As a threshold matter, the Disco Mobile App Text in no uncertain terms proposes that
the recipient enter into a commercial transaction with Defendants. But, Defendants argue the
Disco messages “merely notify a new user that ‘Disco is a group texting service,’ that the
user can download the app for free, and instruct the user how to participate or not participate
in the service,” and the “information is sent to the recipient only because another user signed
up for the service and provided the recipient’s mobile phone number.” (Def. Mot. at 7.)
Besides acting as an outright admission that Defendants did not have Plaintiffs’ consent to
transmit text messages, this argument willfully ignores the meaning and commercial import
apparent on the face of the Disco Mobile App Text.
By its express terms, the Disco Mobile App Text invites the recipient to visit a
website where he or she can download a mobile application. Doing so involves visiting an
online commercial establishment (such as Defendant Google’s very own Android Market, or
Apple’s App Store), creating an account there, agreeing to the terms of service, then electing
to download a piece of software to a mobile phone. Millions of similar commercial
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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transactions occur on a daily basis, with some mobile applications having an upfront charge,

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and others being monetized in alternative ways, such as through advertising.3 The mobile

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application economy has grown significantly in recent years, with Google’s Android Market

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and Apple’s App Store projected revenue expected to exceed $425 million and $2 billion in

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2011, respectively.4 It is here, into this bustling economy, that the Disco Mobile App Text

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directs consumers. As such, Defendants cannot seriously claim the Disco Mobile App Text

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is noncommercial. As described in more detail below, Defendants’ purpose for distributing

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the mobile application was to make money.

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The facts here do not present a close question of whether the Disco Mobile App Text

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may be classified as commercial speech – it is. Nevertheless, an analysis of the Bolger

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factors provides further confirmation that the Disco Mobile App Text is commercial speech

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in that it advertised the Disco service and mobile application with the distinct goal of

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generating a profit.
1.

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The Disco Mobile App Text is an advertisement.

The Disco Mobile App Text is an advertisement promoting the Disco service. The

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Satterfield case is instructive on this point. In Satterfield, the Ninth Circuit described an

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unsolicited text message as an advertisement where it contained the name of a product, an

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invitation to join a club, and a link to that site. Satterfield v. Simon & Schuster, Inc., 569

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F.3d 946, 949 (9th Cir. 2009); see also Gomez v. Campbell-Ewald Co., (CV 10-2007 DMG

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CWX) 2010 WL 7345680 *1, 5 (C.D. Cal. 2010) (describing an unsolicited text message that

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promoted free material as an advertisement); Kramer v. Autobytel, Inc., 759 F. Supp. 2d

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1165, 1168 (N.D. Cal. 2010) (describing unsolicited text messages that contained the price of

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a car, a website address, and a method for recipients to further communicate with the sender

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as an advertisement).

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Google’s Android Market is projected to have 8.1 billion downloads in 2011, and Apple’s
App Store is projected to have 6 billion. See http://news.cnet.com/8301-1035_3-2010323094/android-to-overtake-apple-in-app-downloads/.
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http://www.bgr.com/2011/05/05/major-mobile-app-store-revenue-will-grow-77-7-in-2011/.

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In the present case, the Disco Mobile App Text identifies the Disco brand (“Disco is a

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group texting service”), specifically identifies the Disco mobile application (“chat for FREE

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w/our app”), a price (“FREE”), and a web address for acquiring the product

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(“http://disco.com/d”). (Compl. ¶ 25.) While Defendants suggest that unsolicited text

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messages offering a free service should be exempt from the TCPA (Def. Mot. at 10-11.), in

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the analogous context of unsolicited fax transmissions, the FCC has specifically rejected the

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notion that unsolicited advertisements offering “free” services are not actionable under the

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TCPA. Rules and Regulations Implementing the Telephone Consumer Protection Act of

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1991; Junk Fax Prevention Act of 2005, 71 FR 25967-01 (May 3, 2006) (“May 2006 FCC

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Rules”). The FCC has ruled that such fax transmissions, regardless of whether they offer

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“free” services, are “unsolicited advertisements under the TCPA’s definition.” Id. The FCC

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noted that the “free” nomenclature often “serve[s] as a pretext to advertise commercial

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products and services.” Id. The Disco Mobile App Text should be viewed no differently.
2.

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The Disco Mobile App Text identifies a specific product.

The Disco Mobile App Text has a singular focus on the Disco brand and Disco

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mobile application. As described above, the Disco mobile application is an identifiable

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product that a consumer could have acquired through major online “app stores” such as those

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operated by Google and Apple. It is a specific piece of software designed to operate on

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mobile phones and its distribution is fully controlled by Defendants and their business

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partners. Even if the Disco Mobile App Text made no mention of the mobile application, it

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would still identify a product because it specifically promotes the Disco group messaging

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service by providing the name of a product, the price, and method to acquire it. Thus, the

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Disco Mobile App Text unquestionably identifies a commercial product offered by

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Defendants.

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3.

Defendants had an economic motivation in operating the Disco
service.

Defendants Google and Slide are far from not-for-profit companies, and did not
operate, distribute, or advertise the Disco service and mobile application for public benefit.

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
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Thus, and despite Defendants’ claims that any free service is noncommercial, the mobile

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application’s status as “free” is nothing more than a “pretext to advertise commercial

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products and services.” See May 2006 FCC Rules. It is common knowledge that Google’s

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own business model is built upon providing free services in exchange for viewing paid

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advertisements. See Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1156 (9th Cir.

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2007) (describing Google’s corporate strategy of providing a free search engine for

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consumers by displaying paid advertisements of its business partners within consumers

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search results). Further, Defendant Google acquired Defendant Slide for $182,000,000, and

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thereafter developed and jointly released the Disco messaging service.5 Google’s public

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filings state that its investments and acquisitions, including in Slide, are an “important

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element of [its] overall corporate strategy” of “delivering relevant, cost-effective online

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advertising.”6 While the Disco service may not have reached its full revenue generating

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potential before Google decided to shutter its doors, to be sure, Defendants launched the

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Disco service as a vehicle for serving advertisements for profit and building brand

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recognition. (Compl. ¶¶ 19, 20, 22, 38.)

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B.

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Defendants’ claim that the Disco Mobile App Text is purely informational is

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Defendants’ Disco Mobile App Text messages are not an “informational”
communication.

misguided, and arguably misleading, as that characterization implies that Plaintiffs expected
or requested to receive information about the Disco service. As the Complaint clearly
demonstrates, Plaintiffs did not consent or request to receive any type of text message from
or through the Disco service, let alone an unexpected commercial solicitation from
Defendants. (Compl. ¶¶ 29, 34.) Defendants do not, and cannot, supply any valid basis on
which to conclude that the Disco Mobile App Text is informational.
5

PCMag.com, Google Launches Disco, A Group-Texting Web and… iPhone App?,
pcmag.com/article2/0,2817,2382675,00.asp (Nov 1, 2011).
6

Google.com, Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934, http://investor.google.com/documents/20101231_google_10K.html, at 3, 11 (Nov 1,
2011).
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

8

1

As an initial matter, and even under the FCC rules and regulations cited in

2

Defendants’ brief, the offending text messages do not fit into the definition of an

3

“informational” communication. (Def. Mot. at 10); see Notice of Proposed Rulemaking In

4

the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act

5

of 1991, 25 F.C.C.R. 1501, 2010 WL 276614 at ¶ 3 (Jan. 22, 2010) (providing examples of

6

“informational” messages as calls “notify[ing] recipients of a workplace or school closing”)).

7

Communications are informational when they are sent regularly to individuals sharing a

8

commonality with the sender, and have a primary purpose to relay information rather than

9

advertisements. Id.; see also May 2006 FCC Rules. Additionally, to determine whether the

10

advertisement is for a “bona fide ‘informational communication,’” the FCC considers

11

whether the communication is “issued on a regular schedule; whether the text of the

12

communication changes from issue to issue; and whether the communication is directed to

13

specific regular recipients, i.e., to paid subscribers or to recipients who have initiated

14

membership.” May 2006 FCC Rules.

15

Moreover, the more physical space a communication dedicates to advertising, the

16

higher the inference of the message being a non-informational communication. May 2006

17

FCC Rules. While courts have interpreted this guideline to allow for the mixture of some

18

branding, price quotes, service availability and other advertisements along with informational

19

content, no such mixture exists here. See Peter Strojnik, P.C. v. Signalife, Inc.,

20

(CV081116PHXFJM) 2009 WL 605411 (D. Ariz. 2009) (concluding that defendant’s faxes

21

were not informational but commercial because they invited the recipient to visit a website,

22

induced them to buy defendant’s stock, and the message did not dedicate any space to actual

23

information); Holtzman v. Turza, (08 C 2014) 2010 WL 4177150 (N.D. Ill. 2010) (holding

24

that defendant’s main purpose in sending unsolicited faxes was to build brand recognition

25

and solicit business rather than educating recipients on industry related topics).

26

Here, the Disco Mobile App Text is dissimilar to any type of informational message

27

identified by courts or the FCC. Defendants fail to identify any part of the message that can

28
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

9

1

be deemed “informational,” rather than commercial, such as “industry news articles,

2

legislative updates, or employee benefit information.” See May 2006 FCC Rules. Instead,

3

Defendants tersely assert that because they received Plaintiffs’ phone numbers from a third-

4

party who wanted to use Disco, all messages sent thereafter advertising the Disco service

5

should be exempt from the TCPA since they were sent at the insistence of the group creators.

6

(Def. Mot. at 13.) But this is simply not true. In reality, Defendants transmitted the Disco

7

Mobile App Text, which contained only advertising and no relevant informational content,

8

without the knowledge, consent or involvement of the group creators, to individuals who

9

knew nothing of the service and had no relationship with Defendants. (Compl. ¶ 25.) The

10

recipients of the Disco Mobile App Text were not members of Disco, had not requested to

11

join the Disco service, and did not consent to receive communications from them. (Compl.

12

¶¶ 29, 34.) Further, the Disco Mobile App Text was not sent at regular intervals, and the

13

content of the text message did not change (i.e., from issue to issue).

14

Additionally, Defendants had no reason to believe that any recipient of the Disco

15

Mobile App Text would be interested in the service because no prior relationship existed.

16

(See Compl. ¶ 34.) At best, Defendants could try to claim that the statements “Standard SMS

17

rates may apply” and “More info? Text *help To quit? Text *leave,” are informational, the

18

plain fact remains that, absent a prior relationship, these statements were not relevant

19

information to the recipients, as they neither expected nor requested to receive the Disco

20

Mobile App Text. Thus, because the Disco Mobile App Text presented the brand, product

21

price, and commercial availability of the Disco mobile application, it smacks of commercial

22

advertisement.

23

Finally, Defendants assert that the Disco Mobile App Text is informational because it

24

is sent to “simply inform the [recipient], whose number was provided by another user, how

25

the [recipient] can participate in group texting using the free Disco platform.” (Def. Mot. at

26

13.) A simple example highlights the absurdity of this statement. Under Defendants’ theory,

27

any company could similarly “inform” recipients of their products and services using an

28
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

10

1

unlimited number of unsolicited text messages (e.g., Wal-Mart could “inform” consumers

2

that “Wal-Mart’s website is www.walmart.com”). Likewise, any such company could shore

3

up its TCPA defense by representing that another customer had turned over the recipient’s

4

phone number and represented they had consent to do so. Simply put, there is little to

5

distinguish between Defendants’ view of “information,” on the one hand, and an

6

“advertisement,” on the other. This result both defies logic and flies in the face of the TCPA.

7

Ultimately, because Defendants sent the offending text message indiscriminately to

8

individuals with no relationship with Disco, the Disco Mobile App Text is not informational

9

and violates the TCPA.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

C.

The Disco Mobile App Text is not “inextricably intertwined” with fully
protected speech.

Finally, Defendants cannot plausibly make the argument that the Disco Mobile App
Text is hybrid speech, combining both commercial and non-commercial parts. The Supreme
Court has held that “commercial speech does not retain its commercial character ‘when it is
inextricably intertwined with otherwise fully protected speech.’” Hunt, 638 F.3d at 715-16
(quoting Riley v. Nat'l Fed'n of the Blind of N. Carolina, Inc., 487 U.S. 781, 796 (1988)).
Therefore, and implicit in this standard, where the two components of speech can be easily
separated, they are not “inextricably intertwined.” Hunt, 638 F.3d at 715-16. Thus, for
example, “commenting on public issues in the context of a commercial transaction does not
elevate speech from commercial to political rank.” Hays Cnty. Guardian v. Supple, 969 F.2d
111, 120 (5th Cir.1992). Where the speech at issue is merely tangential to and distinct from
the speaker’s predominantly commercial purpose, the noncommercial aspect should not be
viewed as the core purpose of the speech. Dex Media W., Inc., 2011 WL 2559391, *7.
The latter circumstance is applicable here. The Disco Mobile App text itself does not
contain any noncommercial speech. Further, and even assuming arguendo that it did, the
core of Defendants’ speech is clearly profit-motivated and not intertwined with
noncommercial aspects. Specifically, and in less than 160 characters, the Disco Mobile App
Text directly identifies the Disco brand (“Disco is a group texting service”), Disco mobile
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

11

1

application (“chat for FREE w/our app”), price (“FREE”), and web address for acquiring the

2

product (“http://disco.com/d”) – leaving little to no room for any noncommercial speech.

3

(Compl. ¶ 25.) Additionally, Defendants’ attempt to lump the person-to-person messages in

4

with the Disco Mobile App Text (Def. Mot. at 13) should be disregarded since the singular

5

focus of the Complaint is very clearly the Disco Mobile App Text. (Compl. ¶ 38.) In sum,

6

and considering all of the evidence, there is simply no meaningful nexus between the service

7

and products being advertised (i.e., the commercial speech) and any other speech.

8

Consequently, the Disco Mobile App Text is within the purview of the TCPA.

9

II.

11

CONSTRUING THE TCPA TO PROHIBIT THE DISCO MOBILE TEXT APP
WOULD NOT VIOLATE THE FIRST AMENDMENT
A.
Because Defendants’ messages are commercial speech, the test articulated
in Central Hudson governs Defendants’ as-applied challenge.

12

The Court should use the test articulated in Central Hudson to decide Defendant’s

10

13

First Amendment challenge. At the outset, determining the constitutionality of a statute

14

begins with the well-established rule that “acts of Congress enjoy a strong presumption of

15

constitutionality[.]” Schwenk v. Hartford, 204 F.3d 1187, 1204 (9th Cir. 2000) (citing United

16

States v. X-Citement Video, Inc., 513 U.S. 64, 73 (1994)) (“[W]e do not impute to Congress

17

an intent to pass legislation that is inconsistent with the Constitution as construed by this

18

Court.”). The Supreme Court has held that “commercial speech [enjoys] a limited measure

19

of protection, commensurate with its subordinate position in the scale of First Amendment

20

values, and is subject to modes of regulation that might be impermissible in the realm of

21

noncommercial expression.” Fox, 492 U.S. at 477. (internal citations omitted). The Fox

22

Court further noted that in determining whether a statute violated the plaintiff's First

23

Amendment rights, and as a prerequisite to applying the Central Hudson test, the “first

24

question” confronted is “whether the principal type of expression at issue is commercial

25

speech.” Id. at 473. Here, having established the Disco Mobile App Text may properly be

26

characterized as commercial speech, the analysis now turns to whether regulation of

27

Defendants’ messages would violate the First Amendment under the intermediate Central

28

Hudson standard applicable to commercial speech.
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

12

1

Defendants disagree, arguing that content-neutral restrictions on speech should be

2

analyzed under the test set forth in Ward v. Rock Against Racism.7 Plaintiffs do not dispute

3

that Section 227(b)(1)(A)(iii) of the TCPA is content-neutral. See Moser v. FCC, 46 F.3d

4

970, 973-74 (9th Cir. 1995) (construing TCPA Section 227(b)(1) prohibiting “any telephone

5

call to any residential line using an artificial or prerecorded voice” as content-neutral in

6

rejecting First Amendment challenge).8 Even so, courts facing facts similar to those at issue

7

here (i.e., a First Amendment challenge to the TCPA) have utilized Central Hudson where

8

the speech at issue is facially commercial. See Lozano, 702 F. Supp. 2d at 1011 (finding that,

9

in regards to a text messaging advertising a new DVD release, “[c]ourts analyze restrictions

10

on commercial speech using the four-part test set forth in Central Hudson . . .”).

11

Furthermore, under the facts presented here, the TCPA would survive Defendants’ as-

12

applied First Amendment challenge under either test, as the analyses under both Ward and

13

Central Hudson are “substantially similar.” See Moser, 46 F.3d at 973 (citing Fox, 492 U.S.

14

at 476) (“we note that the tests for time, place, and manner restrictions for content-neutral

15

speech and regulations for commercial speech regulations are essentially identical”). Thus,

16

because commercial speech (and application of Central Hudson) and content-neutral

17

restrictions (and application of Ward) are subject to “essentially identical” scrutiny, it is

18

noteworthy that numerous courts facing similar First Amendment challenges have recognized

19

that “the constitutionality of the TCPA as applied to facsimile transmissions has been

20
21
22
23
24
25
26
27
28

7

Under that test, a statue will survive a First Amendment challenge if it: (i) serves “a
significant governmental interest,” (ii) is “narrowly tailored” to serve that interest, and (iii)
leaves “open ample alternative channels for communication of the information.” Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989).
8

While the Moser court applied Ward, the holding there is distinguishable from the present
case in that the challenge to the TCPA there was a facial attack, seeking to invalidate an
entire provision on grounds that “a selective ban on automated, commercial calls is
unjustified because there is no evidence that such calls are more intrusive than either “live”
or noncommercial calls.” Moser v. F.C.C., 46 F.3d 970, 974 (9th Cir. 1995). By contrast,
here, Defendants’ “as-applied challenge attacks the application of the statutory provision to
the specific factual circumstance of the Disco SMS messages which are not the types of
‘calls’ or messages the statute was enacted to prohibit.” (Def. Mot., 13.)
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

13

1

challenged repeatedly and upheld consistently [under Central Hudson].” Lozano, 702 F.

2

Supp. 2d at 1012, n. 2 (quoting Abbas v. Selling Source, LLC, (09 CV 3413) 2009 WL

3

4884471, *7 (N.D. Ill. Dec. 14, 2009) (collecting cases)); accord Italia Foods, Inc. v.

4

Marinov Enterprises, Inc., No. 07 C 2494, 2007 WL 4117626, *2 (N.D. Ill. Nov. 16, 2007)

5

(collecting cases).

6

Accordingly, as set forth above, the speech put at issue by Defendants, and at the core

7

of their “as applied” challenge, puts the test articulated in Central Hudson properly at play

8

here.

9
10
11
12
13
14

B.

The TCPA, as applied to the Disco Mobile App Text, satisfies each element
of the Central Hudson test.

In this case, the TCPA fulfills each element of the Central Hudson test as it applies to
Defendants’ speech, because (1) the government interest is substantial; (2) the regulation
directly advances that interest; and (3) the regulation is not more extensive than necessary.
Central Hudson, 447 U.S. at 566.
1.

15

The TCPA serves a significant governmental interest of
minimizing the invasion of privacy caused by unsolicited text
message calls.

16

In passing the TCPA, Congress reviewed “significant evidence” regarding “consumer

17

concerns about telephone solicitation in general and about automated calls in particular,” and

18

made “extensive findings.” Moser, 46 F.3d at 973. “[W]hen Congress makes findings on

19

essentially fact issues . . . those findings are of course entitled to a great deal of deference,

20

inasmuch as Congress is an institution better equipped to amass and evaluate the vast

21

amounts of data bearing on such an issue.” Id. at 974. Accordingly, in enacting the TCPA,

22

Congress found that it had “a substantial interest in protecting the privacy of consumers and

23

in preventing the [ ] nuisances” of “rampant telemarketing and the consequent costs of

24

money, time, and the invasion of privacy to consumers.” Moser, 46 F.3d at 974 (“We

25

conclude that Congress accurately identified automated telemarketing calls as a threat to

26

privacy”); Abbas, 2009 WL 4884471, at *7 (citing S. Rep. 102-178, at 1 & 4, reprinted in

27

1991 U.S.C.C.A.N. at 1969, 1971-72 (noting, that “unsolicited calls placed to . . . cellular

28
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

14

1

telephone numbers often impose a cost on the called party [as] cellular users must pay for

2

each incoming call”)); see also Bland v. Fessler, 88 F.3d 729, 734-35 (9th Cir. 1996) (finding

3

California’s interest in personal privacy and the avoidance of unwanted calls and faxes is

4

substantial).

5

The TCPA “serves a significant government interest of minimizing the invasion of

6

privacy caused by unsolicited telephone communications to consumers” and “[r]educing the

7

number of unsolicited calls results in less invasion of privacy for consumers.” Lozano v.

8

Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1011 (N.D. Ill. 2010). The TCPA

9

directly advances this interest by limiting unsolicited calls to consumers. Id. at 1011 (citing

10

Abbas, 2009 WL 4884471, *7 (“Congress found that consumers were helpless to prevent

11

such unwanted telemarketing calls, and were particularly unable to stop the calls via direct

12

requests to the telemarketers themselves”)). Text messages pose the “same irritation,

13

interruption and potential costs to consumers as voice calls.” Lozano, 702 F. Supp. 2d at

14

1008 (citing Abbas, 2009 WL 4884471, *7 (“Congress, for its part, found that cheap,

15

pervasive telemarketing practices needed to be controlled”)). Accordingly, under Ninth

16

Circuit law, “[t]he purpose and history of the TCPA indicate that Congress was trying to

17

prohibit the use of [automatic telephone dialing systems] to communicate with others by

18

telephone in a manner that would be an invasion of privacy” and therefore “a voice message

19

or text message are not distinguishable in being an invasion of privacy.” Satterfield, 569 F.3d

20

at 954.

21

Another purpose and governmental interest underlying the TCPA is to prevent

22

advertisers from shifting the cost of advertising to consumers. See In Re Rules &

23

Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C.R. 14014, 14128

24

(2003). As the FCC has stated:

25
26
27
28

The legislative history indicates that one of Congress’ primary concerns was
to protect the public from bearing the costs of unwanted advertising. Certain
practices were treated differently because they impose costs on consumers.
For example, under the TCPA, calls to wireless phones and numbers for
which the called party is charged are prohibited in the absence of an
emergency or without the prior express consent of the called party.
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

15

1

Congress has a substantial interest in limiting the circumstances in which a consumer will be

2

required to bear costs related to commercial advertisement. See Destination Ventures, Ltd. v.

3

F.C.C., 844 F.Supp. 632, 637 (D. Org. 1994) (finding that “Congress’ interest in protecting

4

consumers from economic harm resulting from the unfair shifting of the cost of advertising to

5

the unwitting consumer” associated with fax spam is a substantial interest which is identified

6

in the TCPA’s legislative history”). Accordingly, “there is a substantial governmental

7

interest in protecting the public from the cost shifting.” Missouri ex rel. Nixon v. Am. Blast

8

Fax, Inc., 323 F.3d 649, 660 (8th Cir. 2003). Combining the overarching privacy interest

9

with the goal of deterring cost shifting, the TCPA serves a significant and substantial

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

government interest, which satisfies the first prong of the Central Hudson test.
2.

The TCPA directly advances the government’s interest and its
regulations are no more restrictive than necessary.

The Supreme Court has effectively “collapsed the last two Central Hudson elements
into a single inquiry of whether there is a “reasonable fit” between the government’s ends
and the means chosen to accomplish those ends.” Dex Media W., Inc., 2011 WL 2559391
(citing City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 415 (1993)). “A
regulation need not be absolutely the least severe that will achieve the desired end, but if
there are numerous and obvious less-burdensome alternatives to the restriction on
commercial speech, that is certainly a relevant consideration in determining whether the fit
between ends and means is reasonable.” Ballen v. City of Redmond, 466 F.3d 736, 742 (9th
Cir. 2006). In other words, the First Amendment and Central Hudson require only that, in
the commercial context, “the speech-restrictive means chosen provide more than ‘ineffective
or remote support’ for a legitimate governmental policy goal.” Ass'n of Nat. Advertisers, Inc.
v. Lungren, 44 F.3d 726, 732 (9th Cir. 1994).
At the outset, and because Congress has identified a substantial interest in protecting
consumers from the invasion of privacy and potential economic harm resulting from
unsolicited calls made by an “automatic telephone dialing system” (“ATDS”), the prohibition
of those calls directly advances that interest. See Destination Ventures, Ltd. v. F.C.C., 844 F.

28
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

16

1

Supp. 632, 637 (D. Or. 1994), aff'd, 46 F.3d 54 (9th Cir. 1995). Relevant here, and as

2

described above, the “evil” Congress focused on throughout the legislative history of the

3

TCPA was the widespread placement of calls to unwilling recipients using an ATDS. See

4

Ward, 491 U.S. at 800, fn. 7 (noting that a speech restriction does not ban all speech, but

5

“focuses on the source of the evils the city seeks to eliminate”). As the TCPA now stands,

6

any call originating from an ATDS (with specific and limited exceptions), made to a

7

consumer who has not consented to receive it, violates the statute. Accordingly, Section

8

227(b)(1)(A)(iii) of the TCPA directly advances Congress’s goal.

9

Likewise, Section 227(b)(1)(A)(iii) of the TCPA is no more restrictive than

10

necessary. The TCPA only prohibits calls made to “paging services, cellular phone services,

11

specialized mobile radio services, or any service for which the party is charged for the call.”

12

Lozano, 702 F. Supp. 2d at 1011-12. As such, the TCPA does not prohibit calls in which

13

“consumers have consented to the call, or where the party is not charged for the call.” Id.9

14

Defendants additionally remain free to publicize their products through any number

15

of legal alternative channels; they just cannot do so by using an ATDS to transmit text

16

messages without permission. See Abbas, 2009 WL 4884471, *8 (“Congress left open ample

17

alternative channels through which telemarketers and other would-be automated callers can

18

communicate”). In fact, if Defendants went so far as to gain the consent of the called party,

19
20
21
22
23
24
25
26
27
28

9

Similarly, the TCPA’s restrictions are and have been held to be “narrowly tailored.” The
Lozano court, for example, held that “[r]educing the number of unsolicited calls results in
less invasion of privacy . . . [and] [t]he TCPA directly advances this interest by limiting
unsolicited calls to consumers. Lozano, 702 F. Supp. 2d at 1011. There, the court went on to
hold that “the fact that the TCPA only prohibits the use of equipment with the capacity to
randomly dial numbers does not [make it] overbroad [as] . . . the limitations on the
prohibition of the use of equipment with certain capacities reflects the restriction is not
excessive in proportion to the interest it serves.” Id. at 1011-12. Case law in the Ninth
Circuit reaches a similar conclusion. In Moser, the Ninth Circuit rejected a First Amendment
challenge to an analogous section of the TCPA and found that restricting automated calls was
narrowly tailored to Congress’s interest in lessening the threat such calls pose to residential
privacy. 46 F.3d at 975. Accordingly, Congress has prohibited no more speech than
necessary to protect consumer’s interest in privacy and from increased costs attendant with
autodialed calls.
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

17

1

they would not be prohibited (at least not by the TCPA) from sending text messages using an

2

ATDS. Defendants could obtain consent for their messages through a variety of means

3

(other than accepting a representation from the group creator that he/she has the consent of

4

all individuals on his/her contact list to upload their phone numbers into Defendants’

5

system), including making the Disco service opt-in, rather than opt-out. Through that

6

method, if a consumer is added to a Disco group, she could be contacted by email, or through

7

a social network such as Facebook, and thereafter take affirmative action on Defendants’

8

website to confirm their participation in the Disco group. Following such action, and

9

depending on the language of Disco’s terms of service, Defendants would be free to

10

thereafter contact consumers by text messages and promote their products and services.

11

Moreover, there is little if any restriction placed on Defendants’ ability to advertise their

12

service and mobile application and numerous alternative means remain available, including:

13

online banner ads, magazines, mobile ad networks, television commercials, or through any of

14

the myriad advertising options Defendant Google has at its disposal. In short, while

15

Defendants may not text their advertisements indiscriminately, they do have ample

16

alternative avenues to reach out to their target audience. See Green v. Anthony Clark Int'l

17

Ins. Brokers, Ltd., (09 C 1541) 2010 WL 431673 (N.D. Ill. Feb. 1, 2010). The TCPA is no

18

more restrictive than necessary and Defendants’ constitutional challenge fails.

19

III.

PLAINTIFF HAS SUFFICIENTLY PLEADED A TCPA VIOLATION.

20

A.

Legal standard applicable to a Rule 12(b)(6) motion.

21

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, Plaintiffs’ Complaint

22

need only contain a “short and plain statement of the claim showing that [they are] entitled to

23

relief.” Here, Defendants claim that Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), as

24

further modified by Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), has somehow radically altered

25

Rule 8(a)(2) and created a fact-pleading standard that Plaintiff has failed to meet.10 That is

26
27
28

10

Courts nationwide, including this District, have noted that “Erickson v. Pardus,
…decided two weeks after Twombly, the Court clarified that Twombly did not signal a switch
to fact-pleading in the federal courts.” Airborne Beepers & Video, Inc. v. AT&T Mobility
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

18

1

simply not the case and Defendants’ argument has been rejected time and again by federal

2

courts nationwide, including this District, on similar facts. See, e.g., Kramer, 759 F. Supp.

3

2d at 1171; Kazemi v. Payless Shoesource Inc., (C 09-5142 MHP) 2010 WL 963225 (N.D.

4

Cal. Mar. 16, 2010).

5

While Twombly and Iqbal did much to clarify the standard of review applicable to

6

motions under Rule 12(b)(6), they did not, as Defendants suggest, radically alter federal

7

pleading standards under Rule 8. Under Twombly, a complaint should not be dismissed

8

under Rule 12(b)(6) if two minimum hurdles are cleared: (1) the Complaint must describe

9

the claim in sufficient detail to give the Defendant fair notice of what the claim is and the

10

grounds upon which it rests; and (2) the Complaint’s allegations must plausibly suggest that

11

the Plaintiff has a right to relief, raising the possibility above a level of speculation.

12

Twombly, 550 U.S. at 544-55. This is consistent with the requirements of Rule 8(a)(2),

13

which requires that a complaint “provide a ‘short and plain statement of the claim showing

14

that [he] is entitled to relief.’ This is not an onerous burden. ‘Specific facts are not

15

necessary; the statement need only give the defendant[s] fair notice of what . . . the claim is

16

and the grounds upon which it rests.’” Johnson v. Riverside Healthcare Sys., LP, 534 F.3d

17

1116, 1122 (9th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89 (2007)); see also

18

Coupons, Inc. v. Stottlemire, 588 F. Supp. 2d 1069, 1073 (N.D. Cal. 2008) (citing Twombly,

19

550 U.S. 544) (“‘heightened fact pleading of specifics’ is not required to survive a motion to

20

dismiss.”). What’s more, “[t]he defendant bears the burden of showing that no claim has

21

been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005).

22

B.

23

Defendants’ attack on the legal sufficiency of the Complaint is premised on the

24

Plaintiff has sufficiently pleaded the use of an ATDS.

notion that Plaintiffs fail to present allegations that create the “inference” that Defendants

25
26
27
28

LLC, 499 F.3d 663, 667-668 (7th Cir. 2007). Erickson reaffirms that under Rule 8 “[s]pecific
facts are not necessary; the statement need only ‘give the defendant fair notice of what the ...
claim is and the grounds upon which it rests.’” Villegas v. J.P. Morgan Chase & Co., No.
C09-00261, 2009 WL 605833 (N.D. Cal., Mar. 9, 2009) (citing Airborne Beepers & Video,
Inc., 499 F.3d at 667-668.).
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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utilized an ATDS. Ignoring numerous well-pleaded supporting facts, Defendants claim that

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Plaintiffs allege a “naked conclusion [that] merely parrots the statute’s language.” (Def. Mot.

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at 4.) This precise argument has been repeatedly rejected by federal courts and similarly

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does not warrant dismissal here.

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To state a claim under the TCPA, a plaintiff must allege facts demonstrating that

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Defendants made calls with certain equipment termed an ATDS, which Congress defines as

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“equipment which has the capacity (A) to store or produce telephone numbers to be called,

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using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. §

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227(A)(1)(iii); see also Satterfield, 569 F.3d at 951 citing 47 U.S.C. § 227(b)(1)(A)(iii));

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Kazemi, 2010 WL 963225. Moreover, whether Plaintiffs and the members of the proposed

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class provided their prior express consent to receive these messages is an affirmative defense

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to, not an element of, demonstrating a TCPA violation. Green v. Serv. Master On Location

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Corp., (07 C 4705) 2009 WL 1810769, *2 n. 2 (N.D. Ill. June 22, 2009) (citing Hinman v. M

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& M Rental Ctr., Inc., 596 F. Supp. 2d 1152, 1159 (N.D. Ill. 2009)); Sadowski v.

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MediOnline, LLC, No. 07 C 2973, 2008 WL 2224892, at *3-4 (N.D. Ill. May 27, 2008)

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(noting that in a TCPA case that the issue of consent is an affirmative defense)). Plaintiffs’

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allegations squarely meet each element of their TCPA claim and it is more than plausible that

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the text messages, which were all uniform and went out en masse and within minutes of the

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group leaders creating the group (Compl. ¶¶ 13, 25, 30, 51), were not sent by an individual,

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but rather necessarily by a machine with the capacity to store the numbers of the group

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members and the capacity to dial them automatically.

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The TCPA unambiguously defines an ATDS as “equipment which has the capacity

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(A) to store or produce telephone numbers to be called, using a random or sequential number

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generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1) (emphasis added). The

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plain language of the TCPA does not require use of the system’s capacity to actually send the

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unlawful text messages. Satterfield, 569 F.3d at 950 (“a system need not actually store,

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produce or call randomly or sequentially generated telephone numbers, it need only have the

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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capacity to do it.”); Lozano, 702 F. Supp. 2d at 1011.

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While allegations that merely restate the TCPA’s definition of an ATDS may, in and

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of themselves, fall short of Rule 8(a)’s minimal pleading guidelines, additional allegations

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that a defendant used a dedicated SMS short or long code to transmit generic, impersonal

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messages “en masse” to consumers are sufficient to allege the use of an ATDS in

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satisfaction of federal pleading requirements. See Kramer, 759 F. Supp. 2d at 1172; Kazemi,

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2010 WL 963225, at *2; Abbas, 2009 WL 4884471, at *3.11

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Precisely like the plaintiffs in Kramer, Kazemi, and Abbas, Plaintiffs support their
allegations that Defendants used an ATDS with specific facts regarding the nature of the text

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messages received and the method in which those text messages were transmitted. In

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particular, Plaintiffs allege that the text messages were transmitted “en masse, using one

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common cellular telephone number provided by Defendants.” (Compl. ¶¶ 13, 51.) Plaintiff

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also provides the content of the message, including the generic and impersonal institutional

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message advertising Defendants’ mobile application. (Id. ¶¶ 25, 30.) And finally, Plaintiffs

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allege that they had no prior relationship with Defendants and had no reason to be in contact

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with Defendants. (Id. ¶ 29.) Defendants’ attempt to distinguish Kramer, Kazemi, and Abbas

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is futile.

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To be sure, nothing about the Disco Mobile App Text is personal in nature; rather, it
is a generic advertisement sent identically to thousands of consumers:

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Disco is a group texting service Standard SMS rates may apply or chat for
FREE w/our app - http://disco.com/d More info? Text *help to quit? Text
*leave

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Defendants misguidedly rely on Knutson v. Reply!, Inc. to support their argument. 2011
WL 291076 (S.D. Cal. Jan. 27, 2011). In the first instance, Knutson actually misstates the
entire pleading requirement for a TCPA claim in the Ninth Circuit. Id. at 1 (including that
the plaintiff must plead he “was charged for the call.”) However, more relevant to this case,
the court there found that the plaintiff’s allegations were insufficient because they did not
make additional allegations like those in Kramer, and specifically used Kramer as the
example of what would suffice to infer the existence of an ATDS. Id. at 2. Plaintiffs’
allegations here are substantially similar to those pleaded in Kramer, and therefore, meet the
minimum pleading requirements.
PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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Moreover, Defendants’ argument that the Disco Mobile App Text is sent at the “behest” of,

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at the “initiation” of, “prompted” by, or “set in motion” by the group creator is demonstrably

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false. (Def. Mot. at 4-5.) In reality, and as alleged, a group creator creates a Disco group,

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and before he or she sends any personal message to the group, Defendants intercede,

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commandeer group members’ phone numbers, and simultaneously transmit the Disco Mobile

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App Text to up to 100 members of each Disco group. (Compl. ¶ 21.) The group creator does

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not request that the Disco Mobile App Text be sent, nor does he or she have any knowledge

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of its transmission until after the fact. (Compl. ¶¶ 21-24.)

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Despite these well-pleaded facts that establish that the equipment used to send the

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Disco Mobile App Text plausibly constitutes an ATDS, Defendants insist that dismissal is

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warranted because it did not actually use the features of an ATDS to send the unauthorized

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text messages to Plaintiff. But equipment need only have the capacity to store and produce

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phone numbers – use of that capacity is not an element of a TCPA claim. See Satterfield,

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569 F.3d at 951. In the end, Plaintiffs allege sufficient facts to demonstrate that Defendants’

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equipment has the requisite capacity to store and produce phone numbers, and thus, the

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contention that they did not use that capacity is irrelevant in the context of the TCPA. The

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Court should deny Defendants’ motion to dismiss in its entirety.

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CONCLUSION

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For the reasons stated herein, Plaintiff respectfully requests that this Court deny

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Defendants Google’s and Slide’s motion to dismiss and for such other relief as the Court

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deems reasonable and just. In the event the Court finds that Plaintiffs’ claims are

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insufficiently pleaded under Federal Rule of Civil Procedure 8, Plaintiffs respectfully

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request leave to add further detail, or otherwise take such other steps necessary to cure any

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defects found by this Court. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806

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F.2d 1393, 1401 (9th Cir. 1986) (“If a complaint is dismissed for failure to state a claim,

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leave to amend should be granted unless the court determines that the allegation of other

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facts consistent with the challenged pleading could not possibly cure the deficiency.”); Doe

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
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v. U.S., 58 F.3d 494, 497 (9 th Cir. 1995) (leave to amend should be granted even if the

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plaintiff did not request leave, unless it is clear that the complaint cannot be cured by the

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allegation of different facts.).

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Dated: November 11, 2011

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Respectfully submitted,

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NICOLE PIMENTAL and JESSICA FRANKLIN,
individually, and on behalf of all others similarly situated,

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EDELSON MCGUIRE LLP

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By: /s/ Sean P. Reis
SEAN P. REIS (SBN 184044)
([e-mail])
EDELSON MCGUIRE LLP
30021 Tomas Street, Suite 300
Rancho Santa Margarita, California 92688
Telephone: [phone]

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SCOTT D. OWENS (Admitted Pro Hac Vice)
([e-mail]]
LAW OFFICES OF SCOTT D. OWENS, ESQ.
2000 East Oakland Park Boulevard, Suite 106
Ft. Lauderdale, Florida 33306
Telephone: [phone]
JORDAN L. LURIE (SBN 130013)
([e-mail])
JOEL E. ELKINS (SBN 256020)
([e-mail])
WEISS & LURIE
10940 Wilshire Boulevard, 23rd Floor
Los Angeles, California 90024
Telephone: [phone]
STEFAN COLEMAN (Admitted Pro Hac Vice)
LAW OFFICES OF STEFAN COLEMAN, PLLC
1072 Madison Ave, Suite 1
Lakewood, NJ 08701
Telephone: [phone]

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS
11-cv-02585-SBA

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CERTIFICATE OF SERVICE

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I, Sean P. Reis, an attorney, certify that on November 11, 2011, I served the above
and foregoing Plaintiffs’ Opposition to Defendants’ Motion to Dismiss by causing true and
accurate copies of such paper to be filed and transmitted to the persons registered to receive
such notice via the Court’s CM/ECF electronic filing system.
/s/ Sean P. Reis

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PLAINTIFFS’ OPP. TO DEF. MOT. TO DISMISS

11-cv-02585-SBA

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