Pimental v. Google, Inc. et al

Filing 45

Reply Memorandum re 29 MOtion to Dismiss Consolidated Class Action Complaint filed by Google, Inc., Slide, Inc.. (Wilson, Bobbie) (Filed on 12/2/2011) Modified on 12/5/2011 (jlm, COURT STAFF).

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1 2 3 4 PERKINS COIE LLP BOBBIE J. WILSON (Bar No. 148317) JOSHUA A. REITEN (Bar No. 238985) Four Embarcadero Center, Suite 2400 San Francisco, CA 94111-4131 Telephone: (415) 344-7000 Facsimile: (415) 344-7050 E-mail: bwilson@perkinscoie.com 5 6 7 8 9 DEBRA R. BERNARD (Pro hac vice) 131 S. Dearborn St., Suite 1700 Chicago, IL 60603 Telephone: (312) 324-8559 Facsimile: (312) 324-9559 E-mail: dbernard@perkinscoie.com Attorneys for Defendants GOOGLE INC. and SLIDE, INC. 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 OAKLAND DIVISION 13 14 15 NICOLE PIMENTAL and JESSICA FRANKLIN, individually and on behalf of all others similarly situated, 16 Plaintiffs, 17 Case No. 11-cv-02585-SBA DEFENDANTS’ REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ CONSOLIDATED CLASS ACTION COMPLAINT v. 18 19 20 21 GOOGLE INC., a Delaware corporation, and SLIDE, INC., a Delaware corporation, Date: Time: Place: Judge: Defendants. This Document Relates to All Actions. 22 23 24 25 26 27 28 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA February 28, 2012 1:00 p.m. Courtroom 1, 4th Floor Hon. Saundra Brown Armstrong 1 TABLE OF CONTENTS PAGE 2 3 INTRODUCTION .......................................................................................................................... 1 4 ARGUMENT .................................................................................................................................. 2 5 I. 6 PLAINTIFFS SEEK TO USE A STATUTE RESTRICTING INDISCRIMINATE TELEMARKETING TO PROHIBIT EXPRESSIVE SPEECH SPECIFICALLY DIRECTED TO PEOPLE SELECTED BY USERS OF DEFENDANTS’ SERVICE. ............................................................... 2 7 A. The Introductory Disco Text Is Non-Commercial Speech. ........................ 2 B. The TCPA Does Not Target Non-Commercial Speech. ............................. 5 8 9 10 II. PLAINTIFFS CANNOT PLEAD A CLAIM FOR RELIEF UNDER THE TCPA.............................................................................................................. 9 11 CONCLUSION ............................................................................................................................. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -iDEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 TABLE OF AUTHORITIES 2 3 4 PAGE CASES Abbas v. Selling Source, LLC, 2009 WL 4884471 (N.D. Ill. Dec. 14, 2009) .............................................................. 6, 7, 9 5 6 Ad World, Inc. v. Township of Doylestown, 672 F.2d 1136 (3d Cir. 1982).............................................................................................. 3 7 Bland v. Fessler, 88 F.3d 729 (9th Cir. 1996)................................................................................................. 6 8 9 Central Hudson Gas & Elec. Corp. v. Public Serv. Comm., 447 U.S. 557 (1980) ........................................................................................................ 5, 6 10 City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750 (1988) ............................................................................................................ 3 11 12 Commodity Futures Trading Com’n v. Vartuli, 228 F.3d 94 (2d Cir. 2000).................................................................................................. 4 13 CPC Intern., Inc. v. Skippy Inc., 214 F.3d 456 (4th Cir. 2000)............................................................................................... 4 14 15 Edenfield v. Fane, 507 U.S. 761 (1993) ............................................................................................................ 8 16 Edwards v. District of Columbia, 765 F. Supp. 2d 3 (D.D.C. 2011) ........................................................................................ 3 17 18 Holtzman v. Turza, 2010 WL 4177150 (N.D. Ill. Oct. 19, 2010)....................................................................... 4 19 Hornstein v. Hartigan, 676 F. Supp. 894 (C.D. Ill. 1988) ....................................................................................... 8 20 21 Hunt v. City of Los Angeles, 638 F.3d 703 (2011)........................................................................................................ 3, 5 22 Kramer v. Autobytel, Inc., 759 F. Supp. 2d 1165 (N.D. Cal. 2010) .......................................................................... 7, 9 23 24 Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999 (N.D. Ill. 2010) .............................................................................. 6, 7 25 Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002)............................................................................................... 8 26 27 Moser v. FCC, 46 F.3d 970 (9th Cir. 1995)............................................................................................. 6, 7 28 -iDEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 TABLE OF AUTHORITIES (CONT’D) 2 3 4 Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002 (2004)...................................................................................................... 3, 4 5 Riley v. National Fed’n of the Blind, 487 U.S. 781 (1988) ............................................................................................................ 5 6 7 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009)............................................................................................... 6 8 Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) ........................................................................................................ 6 9 10 Strojnik v. Signalife, Inc., 2009 WL 605411 (D. Ariz. Mar. 9, 2009) .......................................................................... 4 11 Virginia St. Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) ........................................................................................................ 2, 3 12 13 Virginia Vermiculite Ltd. v. W.R. Grace & Co., 156 F.3d 535 (4th Cir. 1998)............................................................................................... 4 14 Ward v. Rock Against Racism, 491 U.S. 781 (1989) ................................................................................................... passim 15 STATUTES 16 28 U.S.C. § 2403 ....................................................................................................................... 1 17 47 U.S.C. § 227 ................................................................................................................. 1, 8, 9 18 OTHER AUTHORITIES 19 Fed R. Civ. P. 5.1 ...................................................................................................................... 1 20 21 In the Matter of Rules & Regs. Implementing the Tel. Consumer Protection Act of 1991 and Junk Fax Prevention Act of 2005, 2006 WL 901720, 21 F.C.C.R. 3787 (Apr. 6, 2006) .......................................................... 5 22 23 24 25 26 27 28 -iiDEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 INTRODUCTION 2 The Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), cannot reach the 3 introductory Disco text message that is the sole basis for Plaintiffs’ claim because the message 4 proposes no economic transaction, and is therefore expressive, non-commercial speech entitled to 5 full constitutional protection. An interpretation of the statute as reaching non-commercial speech 6 would run afoul of the First Amendment because the government lacks a significant interest in 7 prohibiting communications to members of texting groups that are not indiscriminate and 8 intrusive commercial solicitations. 9 Moreover, Plaintiffs’ assertion that the TCPA bans all “calls” based solely on the alleged 10 “capacity” of Defendants’ equipment—including texts that are not sent by random or sequential 11 dialing, but are sent to individuals selected by other Disco users—impermissibly burdens 12 expressive speech without advancing the government’s goal of reducing telemarketing. To avoid 13 an unconstitutional restriction on speech, the Court should narrowly construe the TCPA, and hold 14 that no claim can be based on informational text messages such as the introductory Disco text.1 15 In addition, Plaintiffs are unable to plead an essential element of their claim—that 16 Defendants sent text messages using an “automatic telephone dialing system” (“ATDS”). 17 Plaintiffs cannot get around the key allegation in their Consolidated Class Action Complaint 18 (“Complaint” or “CCAC”) that other Disco users—and not an ATDS—supplied the phone 19 numbers that received the introductory Disco text. Plaintiffs’ claim therefore fails and the Complaint should be dismissed with prejudice. 20 21 22 23 24 25 26 27 28 1 Plaintiffs filed a notice pursuant to 28 U.S.C. § 2403(a) and Fed R. Civ. P. 5.1 seeking certification that Defendants have drawn the constitutionality of the TCPA into question. See Dkt. 39. Those provisions do not apply here, however. Defendants contend that the TCPA should be interpreted to permit directed, non-commercial text messages, while Plaintiffs’ interpretation would unconstitutionally restrict expressive speech by users of the Disco service. -1- DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 2 ARGUMENT I. 3 PLAINTIFFS SEEK TO USE A STATUTE RESTRICTING INDISCRIMINATE TELEMARKETING TO PROHIBIT EXPRESSIVE SPEECH SPECIFICALLY DIRECTED TO PEOPLE SELECTED BY USERS OF DEFENDANTS’ SERVICE. 4 A. 5 Plaintiffs have reduced their claim to a standard message sent to new members of a texting The Introductory Disco Text Is Non-Commercial Speech. 6 group. Opp. at 1, 12 (introductory Disco text is the “singular focus of the Complaint”). They 7 acknowledge that their entire theory of liability rests on the notion that the introductory Disco text 8 message is “commercial” and therefore subject to regulation. Plaintiffs must do this because they 9 realize that there is no rationale, even under intermediate scrutiny, for punishing a text message 10 11 unless it is a commercial solicitation—i.e., a proposal to engage in an economic transaction. The introductory Disco text—“Disco is a group texting service Standard SMS rates may 12 apply or chat for FREE w/ our app – http://disco.com/d More info? Text *help To quit? Text 13 *leave” (CCAC ¶25)—is informational, and is not a solicitation, and even Plaintiffs understand it 14 that way. Plaintiffs Pimental and Franklin were “added to two different Disco groups in June 15 2011, and both received the [introductory text] from Defendants.” Opp. at 3. Pimental and 16 Franklin received other text messages “from other group members, “even after they attempted to 17 remove themselves (i.e., opt-out) from the Disco group.” Id. Thus, Plaintiffs are griping that 18 they were involuntarily selected by their friends to participate in texting groups, and presented by 19 the introductory Disco text with the convenient opportunity to leave the group. 20 The Disco introductory text is not a commercial solicitation, then, since the alleged 21 transaction—joining a Disco texting group—occurred before the text was transmitted. All of 22 Plaintiffs’ case law defining commercial speech (see Opp. at 4-6) necessarily confirms the 23 standard established long ago by the Supreme Court: Commercial speech is that which does 24 nothing more than propose a commercial transaction. Virginia St. Bd. of Pharmacy v. Virginia 25 Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). The introductory Disco text 26 (1) describes the Disco service to people who already have been signed up by others; (2) tells 27 them the service can result in carrier fees; and (3) tells them how to avoid the fees or leave the 28 service altogether. The text does not ask recipients to engage in any commercial transaction. -2DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 Plaintiffs try to sidestep this problem by asserting that the introductory text “promotes” 2 Disco and invites consumers to download a Disco mobile application. But there is nothing 3 “promotional” about the introductory Disco text—it merely states that “Disco is a group texting 4 service.” It says nothing about Defendants or about any product or service other than that in 5 which they already have been enrolled by a friend. The Disco mobile app is mentioned merely as 6 a free alternative to carrier SMS charges. 7 Plaintiffs also try to characterize the introductory Disco text as luring recipients into the 8 “bustling economy” of mobile apps, that “Defendants’ purpose for distributing the mobile 9 application was to make money.” Id. Plaintiffs offer no facts to support this accusation, but even 10 accepting it as true for sake of argument, it does not transform the introductory Disco text into 11 commercial speech. 12 The Supreme Court has never held that speech that is motivated by or generates profits is 13 “commercial.” If this were so, the entire content of a newspaper or a magazine, and every 14 television news broadcast, would be commercial speech. “[T]he degree of First Amendment 15 protection is not diminished merely because . . . speech is sold rather than given away.” City of 16 Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n.5 (1988). See also Ad World, Inc. v. 17 Township of Doylestown, 672 F.2d 1136, 1139 (3d Cir. 1982) (rejecting contention that 18 community paper comprised mostly of ads was commercial speech); Edwards v. District of 19 Columbia, 765 F. Supp. 2d 3, 12-13 (D.D.C. 2011) (rejecting argument that licensing tour guides 20 was regulation of commercial speech). 21 In Nissan Motor Co. v. Nissan Computer Corp., the Ninth Circuit rejected the argument 22 that linking to web sites critical of the plaintiff auto manufacturer was commercial speech 23 because it disparaged plaintiff and interfered with the full use of plaintiff’s trademark. 378 F.3d 24 1002, 1017 (2004). The court made clear that speech is commercial—and subject to reduced 25 protections under the First Amendment—only when it merely proposes a commercial transaction. 26 “[W]e have never adopted an ‘effect on commerce’ test to determine whether speech is 27 commercial and decline to do so here.” Id. See also Hunt v. City of Los Angeles, 638 F.3d 703, 28 715 & n.6 (2011) (observing that the Supreme Court limits commercial speech to “the proposal of -3DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 a commercial transaction” and no longer refers to it more broadly as speech “related solely to the 2 economic interests of the speaker and its audience”); Virginia Vermiculite Ltd. v. W.R. Grace & 3 Co., 156 F.3d 535, 541 (4th Cir. 1998) (explaining that “the dispositive inquiry is whether the 4 transaction is commercial, not whether the entity engaging in the transaction is commercial”). 5 Unable to identify any proposed commercial transaction, Plaintiffs suggest that describing 6 the Disco service, and offering information to group members (who were brought aboard by 7 acquaintances) about carrier fees and the option of leaving the service, is advertising because “[i]t 8 is common knowledge that Google’s own business model is built upon providing free services in 9 exchange for viewing paid advertisements,” and Google has an overall corporate strategy of 10 delivering online advertising. Opp. at 7-8. This is nothing more than a variation of the “effects 11 on commerce” argument rejected by the Ninth Circuit in Nissan. Other Circuits also consistently 12 rebuff attempts to categorize non-transactional communications as commercial speech. See, e.g., 13 Commodity Futures Trading Com’n v. Vartuli, 228 F.3d 94, 110 (2d Cir. 2000) (trade 14 recommendations generated by computer software were not commercial speech); CPC Intern., 15 Inc. v. Skippy Inc., 214 F.3d 456, 462 (4th Cir. 2000) (web site discussing origins of “Skippy” 16 character is not commercial speech). 17 Plaintiffs’ alternative assertion that Disco’s name and reference to the free mobile app are 18 commercial elements infecting the rest of the text message gets them nowhere. Those words are 19 merely incidental to and intertwined with the primary message, which informs recipients of what 20 the service is, and how to participate for free, and how to leave. As discussed above, when 21 recipients get the text, they already are group members, and no commercial transaction is 22 proposed. Plaintiffs’ citations to cases involving faxed business solicitations are inapposite. See 23 Holtzman v. Turza, 2010 WL 4177150, *4 (N.D. Ill. Oct. 19, 2010) (accountant solicitation for 24 business); Strojnik v. Signalife, Inc., 2009 WL 605411, *5 (D. Ariz. Mar. 9, 2009) (exhorting 25 recipients to research sending company’s stock).2 The defendants in those cases were 26 unabashedly trying to sell something. 27 2 28 The FCC’s guidelines for determining whether a fax has “incidental” advertising also support a finding that the introductory Disco text is informational. The text is issued on a regular schedule (upon the addition of individuals to a Disco group); the text is issue-specific, in that it provides -4DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 Hunt, on which Plaintiffs heavily rely, actually defeats their entire analysis. The Ninth 2 Circuit reiterated the rule that “[c]ommercial speech does not retain its commercial character 3 ‘when it is inextricably intertwined with otherwise fully protected speech.’” 638 F.3d at 715 4 (quoting Riley v. National Fed’n of the Blind, 487 U.S. 781, 796 (1988)). Where “two 5 components of speech can be easily separated, they are not ‘inextricably intertwined.’” Id. Thus, 6 the court held that the city could bar the sale of shea butter and incense on the Venice boardwalk 7 even though vendors extolled the items’ spiritual benefits. “Nothing in the nature of Plaintiffs’ 8 products requires their sales to be combined with a noncommercial message.” Id. at 716. 9 Here, in contrast, it would be impossible to convey the informational message in the 10 introductory text without referring to Disco by name and the URL where the free app is available. 11 Making no reference to Disco or its web site would leave recipients mystified as to what group 12 texting service they have been enrolled in, whether there might be fees, and where they can go to 13 get more information about the service and the app that can make the texting free. Plaintiffs’ 14 conclusory assertions that the entire text is commercial speech because it is “profit motivated and 15 not intertwined with non-commercial aspects” are simply wrong. Plaintiffs both misstate the 16 legal standard that applies here, and ignore the actual words and context of the communication 17 they are suing over. 18 B. 19 Plaintiffs next try to rationalize their broad view of the TCPA as extending to the 20 introductory Disco text by asserting that a ban on such texts complies with Central Hudson Gas 21 & Elec. Corp. v. Public Serv. Comm., 447 U.S. 557, 561 (1980). Opp. at 12-18. The Central 22 Hudson test does not apply because, as explained above, the text is not commercial speech, and 23 section 227(b)(1)(A)(iii) appears on its face to be content-neutral, in that it prohibits all “calls” 24 25 26 27 28 The TCPA Does Not Target Non-Commercial Speech. information relevant to new participants regarding what the service is, and how to avoid fees or leave the service; and the text is directed specifically to those individuals selected by the creator of the Disco group. There is no solicitation in the text, and the reference to the free mobile app is a mere five words and a URL. The text contains no space and is not transmitted for someone other than the sender. Further, the FCC properly focuses on the “transactional” nature of an advertisement—something which is nowhere in the introductory Disco text. See In the Matter of Rules & Regs. Implementing the Tel. Consumer Protection Act of 1991 and the Junk Fax Prevention Act of 2005, 2006 WL 901720, 21 F.C.C.R. 3787, at 3814-15 & n.187 (Apr. 6, 2006). -5DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 using an ATDS. See Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 2667 (2011) (distinguishing 2 content-based and content-neutral laws). Content-neutral regulation of non-commercial speech 3 must meet the reasonable time, place and manner standard explained in Ward v. Rock Against 4 Racism, 491 U.S. 781 (1989).3 See also Bland v. Fessler, 88 F.3d 729, 733 (9th Cir. 1996) 5 (applying Ward to California automatic dialer ban). 6 7 Interpreting the TCPA as prohibiting informational text messages would run afoul of the First Amendment because such a ban fails all three prongs in Ward: 8 9 No Significant Government Interest: The asserted justifications for TCPA all seek to control telemarketing. See Mot. at 8-9. No justification is offered by Plaintiffs that does not 10 depend on the commercial nature of the prohibited communications. Congress sought to restrict 11 “‘automated telemarketing calls as a threat to privacy.’” Opp. at 14 (quoting Moser v. FCC, 46 12 F.3d 970, 974 (9th Cir. 1995)). Congress also wanted to protect consumers from having to pay 13 “costs related to commercial advertisement.” Id. at 16. The legislative history of the TCPA and 14 the cases applying the Act have focused—correctly—on automatic dialing of numbers that were 15 randomly or sequentially generated. See Mot. at 8-10. It is not surprising, then, that the TCPA 16 has withstood challenge in its regulation of blanket, indiscriminate distribution of commercial 17 solicitations, including by text message. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 18 (9th Cir. 2009); Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999 (N.D. Ill. 19 2010); Abbas v. Selling Source, LLC, 2009 WL 4884471 (N.D. Ill. Dec. 14, 2009). “The TCPA 20 was enacted in response to an increasing number of consumer complaints arising from the 21 increased number of telemarketing calls. The consumers complained that such calls are a 22 ‘nuisance and an invasion of privacy.’” Satterfield, 569 F.3d at 954. 23 If section 227(b)(1)(A)(iii) is extended to non-commercial texting, however, the ban loses 24 its rationale and fails under the First Amendment.4 The intrusion resulting from automated 25 3 26 27 28 In other words, Plaintiffs confusingly attempt to use a standard for evaluating certain content restrictions to justify a content-neutral statute. Both tests are a form of intermediate scrutiny. Plaintiff’s broad interpretation of the TCPA, if adopted by the Court, creates constitutional problems under either test. 4 This critical distinction was recognized by the Ninth Circuit in Moser, where it found that a ban on automated telemarketing calls met the Central Hudson test because the regulated -6DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 random and sequential calling by telemarketers does not justify a prohibition on informational, 2 non-commercial speech—particularly here, where the introductory Disco text was sent only to 3 people whom other users believed would like to participate in group texting. 4 The Ban Is Not Narrowly Tailored: A regulation of speech is “narrowly tailored” if it 5 “promotes a substantial government interest that would be achieved less effectively absent the 6 regulation.” Ward, 491 U.S. at 799. There must be a “reasonable fit” between the interest and 7 the restriction: It cannot “burden substantially more speech than is necessary to further the 8 government’s legitimate interests.” Id. 9 There is no “fit” in Plaintiffs’ lawsuit for at least two reasons. First, prohibiting non- 10 commercial “calls” does not stop the personal intrusion that concerned Congress when it enacted 11 the TCPA. Put in the context of this case, punishing Defendants for the introductory Disco text 12 does not advance the government’s interest in reducing telemarketing calls. Plaintiffs 13 unsuccessfully try to obscure this “disconnect” by mischaracterizing the legislative history as 14 focusing on “widespread placement of calls to unwilling participants.” Opp. at 17. The 15 legislative history, the FCC’s rules, and the cases all recognize a government interest in 16 harnessing a tsunami of automated, abusive telemarketing communications. See Mot. at 10-11. 17 To avoid constitutional infirmity, the Court should interpret section 227(b)(1)(A)(iii) as 18 prohibiting commercial solicitations only. 19 Second, imposing liability merely for alleged use of equipment with an alleged “capacity” 20 for random or sequential telemarketing calls restricts an array of other types of speech, while not 21 directly advancing the government’s interest. Although some district courts have accepted the 22 notion of “capacity” liability under section 227(b)(1)(A)(iii), they were presented in those cases 23 with actual commercial solicitations that were indiscriminate blasts of advertising on behalf of 24 businesses with no relationship to the many thousands of recipients. See Kramer v. Autobytel, 25 Inc., 759 F. Supp. 2d 1165, 1167-68 (N.D. Cal. 2010); Lozano, 702 F. Supp. 2d at 1001; Abbas, 26 2009 WL 4884471, *1. Here, in contrast, Plaintiffs are contending that the government can ban 27 28 communications were commercial speech and it was those particular calls that were correctly viewed by Congress as a threat to privacy justifying regulation. Moser, 46 F.3d at 973-74. -7DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 all “calls,” no matter what their content and purpose, and without consideration to the actual 2 source of the numbers dialed, simply because of the capabilities of equipment used by the caller. 3 Even if this might be acceptable under Central Hudson, which is doubtful, the statute fails under 4 Ward because forbidding non-commercial texts lacks a “close and substantial relation to the 5 government interests asserted.” Edenfield v. Fane, 507 U.S. 761, 773 (1993) (ban on in-person 6 solicitations by CPAs was unconstitutional because it did not advance the asserted state interest in 7 “a direct and effective way”).5 See also Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 906 8 (9th Cir. 2002) (“If speech is not ‘purely commercial’—that is, if it does more than propose a 9 commercial transaction—then it is entitled to full First Amendment protection.”); Hornstein v. 10 Hartigan, 676 F. Supp. 894, 896 (C.D. Ill. 1988) (invalidating statute prohibiting unlicensed 11 solicitation of advertising for firefighters magazine because it burdened dissemination of non- 12 commercial speech).6 13 No Alternative Means: Other than a text message, there is no effective way to tell group 14 members what the Disco service is, the possibility of carrier fees and how to avoid them, and how 15 to leave the service with the immediacy inherent in SMS messaging. Plaintiffs apparently do not 16 contend that Disco users violate the law by enrolling friends for group texting. But they seek a 17 remedy for the communication of accurate, important information about the service. Print and 18 broadcast advertisements are costly and ineffective in these circumstances, and unlikely to reach 19 everyone who is included in a texting group by a friend.7 Plaintiffs try to distract by asserting that 20 Defendants can use other means to advertise the Disco service. Opp. at 17. But we are not 21 litigating about general advertising; Plaintiffs are suing over texts specifically directed to people 22 who are already enrolled and who are likely to have an interest in the communication’s content. 23 5 24 25 26 27 28 None of the cases cited by Plaintiffs considered whether section 227(b)(1)(A)(iii) passed constitutional muster if the statute was interpreted as reaching non-commercial texts. 6 Even if the introductory Disco text is commercial speech, section 227(b)(1)(A)(iii) runs afoul of the First Amendment by prohibiting all calls using an ATDS simply because of its “capacity.” A speech restriction based on equipment capacity, divorced from whether that capacity was actually used, does not alleviate to a material degree the asserted evils of telemarketing. See Edenfield, 507 U.S. at 771. 7 The email alternative proposed by Plaintiffs also is not a true alternative because many people who use texting to communicate are not email users. The only reliable way to reach people who are included in Disco groups is to text them. -8- DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 What Plaintiffs seek here is a broad ban on all group texting. Not being able to speak to 2 group members about a service in which they have been enrolled by an acquaintance will create 3 confusion and antagonize users (and possibly wreck friendships). It will interfere with the 4 development of an efficient, instantaneous means for expressive communication among countless 5 people. By rejecting Plaintiffs’ contention that even informational texts are prohibited by section 6 227(A)(1)(iii), this Court avoids “regulat[ing] expression in such a manner that a substantial 7 portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799. 8 II. 9 PLAINTIFFS CANNOT PLEAD A CLAIM FOR RELIEF UNDER THE TCPA. Plaintiffs’ allegations offer no more than conclusory recitals of the TCPA to support an 10 essential element of the claim—specifically, the use of an ATDS, which the TCPA defines as 11 equipment with the capacity to (1) “store or produce telephone numbers to be called, using a 12 random or sequential number generator”; and (2) “dial such numbers.” Opp. at 20; 47 U.S.C. 13 § 227(a)(1). Instead of alleging facts to support both prongs of that definition, Plaintiffs simply 14 assert “on information and belief” that Defendants used an ATDS. See Mot. at 4. 15 In opposition to the Motion, Plaintiffs identify but three types of allegations in the 16 Complaint that they claim are sufficient to establish the ATDS element: (i) the texts were sent “en 17 masse”; (ii) the texts were “generic and impersonal”; and (iii) Plaintiffs “had no prior relationship 18 with Defendants and had no reason to be in contact with Defendants.” Opp. at 21. 19 Plaintiffs’ position, however, ignores the other allegations in the Complaint that defeat 20 any inference that an ATDS was used. For example, the Complaint discloses that the groups to 21 which the text messages are sent are created by the Disco users themselves, not Defendants. 22 CCAC ¶¶12-13. Thus, Plaintiffs concede that Defendants do not generate or supply the numbers 23 to which text messages are sent; rather, it is the group creator (a Disco user) who provides those 24 numbers. CCAC ¶¶14, 19-20. This is a critical fact not present in the Kramer, Kazemi, or Abbas 25 cases cited by Plaintiffs. Plaintiffs’ own allegations concede that none of the putative class 26 members’ numbers were randomly or sequentially generated. 27 28 Further undercutting Plaintiffs’ position and distinguishing this case from the Kramer/Kazemi/Abbas line is that the Complaint establishes that Defendants did not send -9DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA 1 impersonal messages for marketing purposes. Instead, group members received the information 2 that Disco is a “group texting service,” the names of the recipient and group creator, and an 3 explanation that the group creator had added the recipient to a particular group. CCAC ¶¶25, 27, 4 30, 32. These allegations establish that Defendants did not arbitrarily contact Plaintiffs as part of 5 a blanket, indiscriminate advertising campaign, and defeat any inference that Defendants sent the 6 text messages using an ATDS. 7 Plaintiffs also attempt to skirt their pleading deficiencies in two other ways. First, they 8 argue that Defendants send text messages to group members before the group creators do and 9 Defendants do so not at the group creators’ request. Opp. at 22. But that does not change the fact 10 that it is the group creators—not some machine—who supply the dialed phone numbers to Disco. 11 Second, Plaintiffs mischaracterize Defendants’ position by claiming that “Defendants 12 insist that dismissal is warranted because [they] did not actually use the features of an ATDS to 13 send the unauthorized text message to Plaintiff[s].” Opp. at 22 (emphasis in original). Plaintiffs 14 protest that an ATDS “need only have the capacity” to store and produce telephone numbers 15 using a random or sequential number generator and dial such numbers; and “use of that capacity 16 is not an element of a TCPA claim.” Id. But that misses the point. Defendants’ position—and 17 what the Motion demonstrates—is that Plaintiffs are unable to allege that Defendants actually 18 used equipment with such “capacity.” See Mot. at 3-6. Plaintiffs lack the necessary facts to 19 support a reasonable inference that an ATDS was used in sending the introductory Disco text. Id. 20 CONCLUSION 21 22 For all the foregoing reasons, Defendants respectfully request that the Court issue an order granting the Motion and dismissing the Consolidated Class Action Complaint with prejudice. 23 24 DATED: December 2, 2011 PERKINS COIE LLP 25 26 27 28 By: /s/ Bobbie J. Wilson BOBBIE J. WILSON Attorneys for Defendants GOOGLE INC. and SLIDE, INC. -10DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO DISMISS Case No. 11-cv-02585-SBA

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