Warciak v. Nikil, Inc.
Filing
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MEMORANDUM Opinion and Order. For the foregoing reasons, Nikil's motion, 22 , is granted, and Warciak's claims are dismissed without prejudice. Should Warciak believe he can, consistent with Federal Rule of Civil Procedure 11, cure the deficiencies identified in this opinion, he may file a motion for leave to amend by April 21, 2017. The motion must attach a proposed amended complaint, and be supported by a brief of no more than five pages explaining how the proposed amendments add ress the Court's analysis in this opinion. Nikil should not respond to any such motion unless the Court so orders. If Warciak does not file such a motion by April 21, 2017, this dismissal will be with prejudice. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 3/23/2017:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW WARCIAK, individually and on
behalf of all other similarly situated,
No. 16 C 5731
Plaintiff,
Judge Thomas M. Durkin
v.
NIKIL, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Matthew Warciak alleges that Nikil, Inc. sent him a text message without his
permission in violation of the Telephone Consumer Protection Act (the “TCPA”). He
also alleges that the sending of the text violated the Illinois Consumer Fraud Act
(the “ICFA”). R. 20. Nikil has filed a motion to dismiss for failure to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). R. 22. For the following
reasons, that motion is granted.
Legal Standard
A Rule 12(b)(6) motion challenges the sufficiency of the complaint. See, e.g.,
Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th
Cir. 2009). A complaint must provide “a short and plain statement of the claim
showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to
provide defendant with “fair notice” of the claim and the basis for it. Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007). This standard “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). While “detailed factual allegations” are not required, “labels
and conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Twombly, 550 U.S. at 555. The complaint must “contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “‘A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.’”
Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). In
applying this standard, the Court accepts all well-pleaded facts as true and draws
all reasonable inferences in favor of the non-moving party. Mann, 707 F.3d at 877.
Background
Nikil developed a social network and related mobile application (or “app”)
called “Down to Lunch” (the “App”). R. 20 ¶ 15. The App’s purpose is to “connect[]
friends to allow them to easily and spontaneously meet in person for events and
activities, such as meeting for lunch.” Id.
Warciak alleges that he received a text message from Down to Lunch stating
that one of Warciak’s friends had invited him to join Down to Lunch (an “invitation
text message”). Id. ¶ 36. He alleges that Down to Lunch users are not aware that by
using the App to send invitations they cause a text message to be sent to recipients
like Warciak, and that Nikil was actually responsible for generating the text
message. Id. ¶ 26.
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Analysis
I.
TCPA Claim
TCPA § 227(b)(1)(A) prohibits an individual from using an automatic
telephone dialing system “to make any call” to a cell phone, other than for
emergency purposes or with the prior consent of the called party. 47 U.S.C. §
227(b)(1)(A). The FCC’s implementing rule interprets the statutory phrase “make
any call” to mean “initiate any telephone call.” 47 C.F.R. § 64.1200(a)(1). The FCC
has also ruled that these requirements apply to text messages. See In the Matter of
Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C.R.
7961 ¶ 27 (2015) (the “FCC Order”). In cases addressing the applicability of TCPA §
227 to invitation text messages, the FCC provided the following guidance for
determining who “initiated” a text:
we look to the totality of the facts and circumstances
surrounding the placing of a particular call to determine:
1) who took the steps necessary to physically place the
call; and 2) whether another person or entity was so
involved in placing the call as to be deemed to have
initiated it . . . .
30 F.C.C.R. ¶ 30.1 Courts analyzing this issue in the wake of the FCC Order have
taken their cue from the FCC’s application of this standard to the particular cases
at issue in the Order. With respect to an app called “TextMe,” the FCC found that
the
The Supreme Court and the Seventh Circuit have yet to address the question
of whether a text sent through an app is “initiated” by the user of the app or the app
itself, so the FCC Order is binding on this Court under the Hobbs Act, 28 U.S.C. §
2342(1). See CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 450 (7th Cir.
2010).
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affirmative choices by the app user lead us to conclude
that the app user and not TextMe is the maker of the
invitational text message. While we agree with
commenters that TextMe’s control of the content of the
invitational text message is a reason for concern, and take
into account the goals and purposes of the TCPA, we
conclude that the app user’s actions and choices
effectively program the cloud-based dialer to such an
extent that he or she is so involved in the making of the
call as to be deemed the initiator of the call.
Id. ¶ 37. By contrast, with respect to another app called “Glide,” the FCC found that
Glide automatically sends invitational texts of its own
choosing to every contact in the app user’s contact list
with little or no obvious control by the user. In this
scenario, the app user plays no discernible role in deciding
whether to send the invitational text messages, to whom
to send them, or what to say in them.
Id. ¶ 35.
The relevant alleged facts about the Down to Lunch app are as follows. The
first screen that appears in the Down to Lunch app asks the user if they would like
to “Find Friends,” and notes that choosing this option “will not text anyone.” R. 20 ¶
16 (fig. 1). If the user elects to “find friends,” the app seeks permission to access the
user’s contacts, and if permitted, lists the user’s contacts who are already using
Down to Lunch. Id. ¶¶ 17-18 (figs. 2-3). Eventually, the user is confronted with a
screen that suggests the user “get more friends to eat with!” Id. ¶ 21 (fig. 7). This
screen informs the user that if he or she gets a “friend” to “join” Down to Lunch the
user will receive “50 points,” which can then be used to acquire stickers (for 2,000
points) or a t-shirt (for 5,000 points). Id. At the bottom of this screen there is also an
invitation to “invite contacts,” with the name of one of the user’s contacts listed
above two large button options, “Skip” and “Invite.” Id. If the user clicks the “Invite”
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button, the “contact” that was listed on the screen receives a text from a Down to
Lunch phone number that is composed by Down to Lunch. Warciak alleges he
received the following text:
Hey Matt Warciak! [Redacted Contact Name] personally
invited you to the Down to Lunch app so you both can
hang out together! The app shows you which friends are
free to eat, study, or drink! Join [redacted] and 14 other
friends and get it now on the App Store or here [hyperlink
to Down to Lunch website].
Id. ¶ 24 (fig. 9).
The facts here are analogous to the “TextMe” app and distinguishable from
the “Glide” app analyzed in the FCC Order. Like the TextMe app, Warciak has
alleged that users must take several “affirmative steps” before generating a text
message through Down to Lunch. Most important, users must affirmatively click a
button to invite a particular contact, and only then is a text message sent to that
particular contact, and that particular contact alone. Unlike the Glide app, Down to
Lunch does not “automatically” send text messages to every one of the user’s
contacts. The Down to Lunch user, not the app itself, decides whether any of the
user’s contacts receive a text message generated by and through Down to Lunch.
Since the user decides whether the text gets sent, Nikil cannot plausibly be said to
have “initiated” the text through Down to Lunch. Thus, Warciak has failed to state
a claim that Nikil violated the TCPA.
As Nikil points out, several district courts have similarly interpreted the FCC
Order to support dismissal of TCPA claims about mobile application text invitations
at the pleading stage. See Cour v. Life360, Inc., 2016 WL 4039279, at *3-4 (N.D. Cal.
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July 28, 2016) (“Here, by contrast, Life360 users choose which of their contacts
should receive an invitation and then press an ‘invite’ button before invitations are
sent. Life360 is therefore much more similar to TextMe.”); Wright v. Lyft, Inc., 2016
WL 7971290, at *2 (W.D. Wash. Apr. 15, 2016) (“[The FCC Order] makes it clear:
‘invitational’ messages sent at the behest of existing users of an app or system do
not fall within the ambit of the TCPA.”); McKenna v. WhisperText, 2015 WL
5264750, *3 (N.D. Cal. Sept. 9, 2015) (“[I]t is undeniable from [the plaintiff’s]
previous allegations that the human intervention of a Whisper App user is
necessary to [send the text invitation].”); Huricks v. Shopkick, Inc., 2015 WL
5013299, *3 (N.D. Cal. Aug. 24, 2015) (“The Court finds the steps the user must
have taken to cause the Shopkick invitational text messages to be sent are
indistinguishable in all material respects from the steps a user of the TextMe app
must take to cause the TextMe invitational texts to be sent, which steps, as set
forth above, are tapping a button stating ‘invite your friends,’ choosing which
contacts to invite, and choosing to send the text messages by tapping another
button.”).
Without meaningfully distinguishing these cases, Warciak relies on a recent
decision in another case he filed in this district, in which Judge Kennelly denied a
motion to dismiss a TCPA claim based on texts received through a social network
app. See Warciak v. One, Inc., 2016 WL 7374278 (N.D. Ill. Dec. 20, 2016). But Judge
Kennelly distinguished the app at issue in One:
One’s attempt to align the [app at issue] with [the apps in
the cases cited above] is unsuccessful, as One’s
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application never indicates to users that they are sending
invitations. The users cannot be the initiators of these
text messages for purposes of the TCPA if, as Warciak has
alleged, the users were unaware that their actions would
result in invitations.
Id. at *4. Here, by contrast, Warciak’s allegations demonstrate that Down to Lunch
users know their actions initiated invitations. Far from supporting Warciak’s claims
in this case, Judge Kennelly’s decision in One undermines them.
Warciak’s allegations make it clear that users of the Down to Lunch app
initiate the invitations. But Warciak argues that, under the totality of the
circumstances, “invitations” should be distinguished from “texts,” because the App
“never informs the user that a text message is being sent, and affirmatively
misrepresents that it won’t happen.” R. 36-1 at 11 (referring to the “Find Friends”
screen which says that choosing this option “will not text anyone.” R. 20 ¶ 16 (fig.
1)). Warciak argues that he has plausibly alleged that Nikil and its App are the
initiator of the texts (if not the invitations) because the App “determines whether
the preselected contact has a telephone number associated with it, determines the
content of the text message which is sent from Defendant’s own phone number(s),
and determines when to send it.” R. 36-1 at 11. But the fact that any number of
technological processes must occur for a person to make a call or send a text—
processes over which the app user has no control—does not distinguish Down to
Lunch from a normal person-to-person text. All telephone or smart phone users are
dependent upon telecommunications carriers to provide the mechanism for texts or
phone calls to be sent and received. But those processes are irrelevant to whether a
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person has “initiated” the chain of technological events that results in a contact
receiving a text or phone call. See 30 F.C.C.R. ¶ 37 (“TextMe is not the maker or
initiator of the invitational text messages because it is not programming its cloudbased dialer to dial any call, but merely has some role, however minor, in the causal
chain that results in the making of a telephone call.”).2
To the extent Warciak means to argue that Down to Lunch users do not know
that the “invitation” will be sent in the form of a text, as opposed to an email or
letter, this is beside the point. Whether Down to Lunch users think their invitations
are being communicated by texts, emails, or letters, could only possibly be relevant
if the users themselves were the intended defendants. If Warciak intended to sue
the users, he might be right that he would need to prove both that the users
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Warciak also attempts to support his case by with the following analogy:
Suppose that instead of a text message, pressing the
‘Invite’ button meant that the invited contact received a
voice phone call where a recorded voice encouraged them
to join Down to Lunch. It wouldn’t make sense to suggest
that the app user made the hypothetical voice call where
she didn’t dial the number, wasn’t on the line, and didn’t
even know that clicking the invite button was going to
make Down to Lunch ring her friends at random.
R. 36-1 at 12. Warciak uses the inapposite comparison of voice and text technologies
to create a red herring. No sender of a text is ever “on the line” in a manner
analogous to a phone call. Yet the TCPA still applies to text messages.
Furthermore, Warciak’s contention that Down to Lunch users do not “know
that clicking the invite button was going to make Down to Lunch [contact their]
friends at random,” is an inaccurate characterization of Warciak’s own allegations.
He has alleged that Down to Lunch users are presented with a screen listing one
particular contact name with the option to “invite” that contact to “join” Down to
Lunch. There is nothing random about the process. Rather, according to Warciak’s
allegations, Down to Lunch users know precisely who they are inviting to join the
network and when they are doing so.
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“initiated” the invitation, and that the users did so knowing that the invitation was
a text message actionable under the TCPA. But since the users are not the intended
defendants, it is irrelevant that they might not have known that their invitations
were being communicated by texts, as opposed to other forms of communications,
such that they might face liability under the TPCA. Rather, the point of
determining that the users are the “initiators” is to demonstrate that Nikil is not
the initiator, and so cannot be liable under the TCPA. As discussed, Warciak’s
allegations demonstrate that the users initiated the invitations, so Nikil cannot
have initiated the texts; rather, Nikil supplied the means for the user to initiate a
text message. Therefore, Warciak’s TCPA claim is dismissed.3
II.
ICFA Claim
The ICFA prohibits
unfair methods of competition and unfair or deceptive
acts or practices, including but not limited to the use or
employment of any deception, fraud, false pretense, false
promise,
misrepresentation
or
the
concealment,
suppression or omission of any material fact, with intent
that others rely upon [any such action] . . . .
815 ILCS 505/2. The Illinois Supreme Court has held that “[t]he elements of a claim
under the [ICFA] are: (1) a deceptive act or practice by the defendant; (2) the
defendant’s intent that the plaintiff rely on the deception; and (3) the occurrence of
As an aside, the Court finds it highly implausible that Down to Lunch users do not
know that their invitations will be communicated by text, as it is common
knowledge that text messages are the primary means of communication for mobile
smart phone apps. See Wright, 2016 WL 7971290, at *3 (the plaintiff’s contention
that the invitation could have been sent by “U.S. Mail” was “definitely
implausible”).
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the deception during a course of conduct involving trade or commerce.” Robinson v.
Toyota Motor Credit Corp., 775 N.E.2d 951, 960 (Ill. 2002). Additionally, a plaintiff
must show that he or she suffered “actual damage” as a result of the defendant’s
violation of the act. 815 ILCS 505/10a. Only “purely economic injuries” are
cognizable under the ICFA. Cooney v. Chi. Pub. Schs., 943 N.E.2d 23, 31 (Ill. App.
Ct. 1st Dist. 2010).
Warciak argues that he has plausibly alleged that Nikil’s statement that the
Down to Lunch “find friends” function “will not text anyone” was deceptive, because
a text was eventually sent. See R. 36-1 at 18. But as discussed, this screen clearly
refers to the “find friends” function in particular, and Warciak does not allege that
the “find friends” function caused a text to be sent. The screen following the “find
friends” screen proposed that the user “invite” friends to “join” Down to Lunch, and
choosing “invite” is what caused the text being sent. Warciak does not claim that
there is anything deceptive about this screen. At that point, Warciak’s allegations
make clear, the user understands that by clicking “invite” his or her friend will
receive an invitation. No reasonable person would impute the “no text will be sent”
statement from the “find friends” screen to likewise apply to the screen that
provides the means for the user to affirmatively invite one of their contacts to join
Down to Lunch. Thus, Warciak has failed to allege a deceptive statement that can
satisfy the ICFA.
Even if Nikil’s statement is deceptive for purposes of the ICFA (which it is
not), Warciak has failed to allege actual damage. Warciak alleges that the class
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suffered injuries in the form of invasions of privacy and
violations of their statutory rights, the monies paid to
receive Defendant’s unsolicited text messages, the
diminished value and utility of their telephone equipment
and telephone subscription services (i.e., the value of such
equipment and services is higher when unencumbered by
repeated and harassing text message calls), the amount of
time lost answering and fielding the unwanted
telemarketing text messages, the wear and tear on their
telephone equipment, the loss of battery (which becomes
diminished with each incoming phone call), the loss of
battery life (which has a finite number of charging cycles),
and the electricity costs required to recharge their cellular
phones.
R. 20 ¶ 35. Only the cost of a receiving a text message and loss of battery life can be
described as “economic injuries.” But although Warciak alleges that the class
suffered these injuries as a whole, he does not allege he suffered these particular
injuries himself. Rather, he alleges that he was only injured in that the “intrusive
text messages adversely affected [his] right to privacy.” Id. ¶ 38. This is not an
economic injury cognizable under the ICFA. So even if Warciak had sufficiently
alleged a deceptive statement, his claim would fail because he has not alleged
economic damages.
Conclusion
For the foregoing reasons, Nikil’s motion, R. 22, is granted, and Warciak’s
claims are dismissed without prejudice. Should Warciak believe he can, consistent
with Federal Rule of Civil Procedure 11, cure the deficiencies identified in this
opinion, he may file a motion for leave to amend by April 21, 2017. The motion must
attach a proposed amended complaint, and be supported by a brief of no more than
five pages explaining how the proposed amendments address the Court’s analysis in
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this opinion. Nikil should not respond to any such motion unless the Court so
orders. If Warciak does not file such a motion by April 21, 2017, this dismissal will
be with prejudice.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: March 23, 2017
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