Yates v. Checkers Drive-in Restaurants, Inc. et al

Filing 101

MEMORANDUM OPINION AND ORDER Signed by the Honorable Sharon Johnson Coleman on 4/1/2019: Defendants' motion to dismiss 65 is granted in part and denied in part. Plaintiff's TCPA claims are dismissed with the exception of her claim that she did not consent to receive the initial text message from Checkers. Mailed notice (mw,)

Case: 1:17-cv-09219 Document #: 101 Filed: 04/01/19 Page 1 of 7 PageID #:628

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

MADELEINE YATES, on behalf of herself
and other persons similarly situated,
Plaintiff,
v.
CHECKERS DRIVE-IN RESTAURANTS,
INC. and VIBES MEDIA, LLC,
Defendants.

)
)
) Case No. 17-cv-9219
)
) Judge Sharon Johnson Coleman
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
The plaintiff, Madeleine Yates, brings this action against Checkers Drive-In Restaurants, Inc.
and Vibes Media, LLC, alleging that the defendants violated the Telephone Consumer Protection
Act by repeatedly sending her commercial advertisements via text message. The defendants now
move to dismiss Yates’ complaint for failure to state a claim. For the reasons set forth herein, that
motion [65] is granted in part and denied in part.
Background
The following allegations are from the plaintiff’s complaint and are taken as true for the
purpose of the present motion. Checkers contracts with Vibes to conduct nationwide text message
promotion campaigns.
Yates texted the word “Buford” to the defendants’ SMS number, 88001, in order to obtain a
coupon for a free “Big Burford” cheeseburger. In response, the defendants sent Yates a message
stating:
REPLY with you ZIP CODE to get your FREE Big Buford coupon
& other deals from Checkers/Rally’s at this #. No purchase
necessary to join.
1

Case: 1:17-cv-09219 Document #: 101 Filed: 04/01/19 Page 2 of 7 PageID #:629

Yates replied with her zip code, and received a text message from the defendants reading:
You’re a BOSS! You scored a FREE Big Buford from
Checkers/Rally’s. Tap to view & redeem your offer:
http://vbs.cm/D1Xq3m. Txt STOP2stop.
Yates subsequently received the following string of text messages between January and April 2017.
Go BUCK wild on this deal. Checker/Rallyburger with Cheese for
just a $1 at Checkers/Rally’s. Limited time only.
http://vbs.cm/G1cu6q Txt HELP4help, STOP2end.
When two burgers become one! Grab a FREE Roadhouse Baconzilla
w/LG drink purchase at Checkers/Rally’s. View & redeem:
http://vbs.cm/t1CwbdExpl/23/17.
Seasoned & cheese-oned. Get FREE Monsterella Stix (4PC.) w/any
drink purchase at Checkers/Rally’s. View & redeem:
http://vbs.cm/G19xAs Exp1/30/17. Text Stop2end.
Get SUPER saucy this Sunday. Score big with any flavor 20pc wings
for $12.99 w/purchase. Checkers/Rally’s. View/Redeem:
http://vbs.cm/p2M0LS Exp2/6/17.
BACON CHEDDAR CRISP. Now part of the 4/$3 deal at
Checkers/Rally’s. Get a sandwich, fries, drink & apple pie – all for
$3: http://vbs.cm/W2Q2vh. Txt HELP4help.
Fries>Flowers. Profess your Fry Love this Valentine’s day. Get a
FREE Lg fry w/purchase from Checkers/Rally’s. View & redeem:
http://vbs.cm/02S3H4 Exp 2/20/17.
New deal alert! FREE Monstrella Stix Dbl Burger or Monstrella
Chicken Parm w/Lg drink purchase @ Checkers/Rally’s.
View/redeem: http://vbs.cm/B2w5mg.
These shrimp are cray. Get a FREE Cheddar Biscuit Shrimp & Fries
Box w/ Lg drink purchase at Checkers/Rally’s. View & Redeem:
http://vbs.cm/R2K8kc Exp3/23/17.
Two ways to go bold. Buy 1 Crispy Fish or Spicy Chicken sandwich,
get 1 FREE at Checkers/Rally’s. View and redeem:
http://vbs.cm/n2KCnP Exp4/7/17. Text STOP2stop.
Oh Yeah! The Kool-Aid Watermelon Slushie is NEW at
Checkers/Rally’s. Get a FREE regular size w/any purchase. View &
redeem: http://vbs.cm/Q23Hf2 Exp4/17/17.
2

Case: 1:17-cv-09219 Document #: 101 Filed: 04/01/19 Page 3 of 7 PageID #:630

Yates alleges that these messages were sent to thousands of cellular telephone numbers using
hardware designed to dial random and sequential numbers or to store and dial lists of telephone
numbers automatically.
Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint, not the merits of the allegations. The allegations must contain
sufficient factual material to raise a plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although Rule 8 does not require a plaintiff
to plead particularized facts, the complaint must assert factual “allegations that raise a right to relief
above the speculative level.” Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). When ruling
on a motion to dismiss, the Court must accept all well-pleaded factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor. Boucher v. Fin. Sys. of Green Bay, Inc.,
880 F.3d 362, 365 (7th Cir. 2018).
Discussion
The defendants contend that Yates has not adequately alleged the use of an Automatic
Telephone Dialing System because the system that she alleges does not dial random or sequential
numbers. Under the TCPA, an automatic telephone dialing system is defined as “equipment which
has the capacity—(A) to store or produce telephone numbers to be called, using a random or
sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1).
The DC Circuit, vacating prior FCC interpretations, has concluded that under this statutory
language the device in question must itself generate random or sequential numbers to be dialed,
rather than accessing stored lists of numbers. ACA Int’l v. FCC, 885 F.3d 687, 699–702 (D.C. Cir.
2018). The Ninth Circuit, by contrast, has rejected that interpretation and held that a marketing
platform that sends promotional text messages to a list of stored telephone numbers constitutes an
3

Case: 1:17-cv-09219 Document #: 101 Filed: 04/01/19 Page 4 of 7 PageID #:631

autodialer. Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1050–53 (9th Cir. 2018). Within this
district, ACA Int’l has been applied to preclude TCPA claims based on express allegations involving
the use of a “predictive dialer.” See, e.g. Pinkus v. Sirius XM Radio, Inc., 319 F. Supp. 3d 927, 937–939
(N.D. Ill. 2018) (Feinerman, J.). Here, however, Yates alleges both that the auto-dialing equipment
at issue “includes features substantially similar to a predictive dialer” and that it has “the capacity to
store, produce, and dial random and sequential numbers.” Pinkus only addresses the sufficiency of
the former allegation, and the latter provides sufficient basis to conclude that the existence of an
automatic telephone dialing system has been adequately alleged at this preliminary stage in the
proceedings, given the general rule that allegations of an automated telephone dialing system are
liberally construed in light of the lack of information available to plaintiffs. See generally Mauer v.
American Intercontinental University, Inc., No 16-cv-1473, 2016 WL 4651395, at *4 (N.D. Ill. Sept. 7,
2016) (Ellis, J.). Although the defendants’ arguments might well have merit once fact discovery is
complete and the nature of the system at issue known, at present they are premature.
The defendants next contend that Yates cannot state a claim because she consented to
receive the messages at issue. Under the Telephone Consumer Protection Act (TCPA), the use of
an automated telephone dialing system (autodialer) is only permitted upon the prior express consent
of the recipient. 47 U.S.C. § 227(b)(1)(A). The FCC’s implementing rules further require that the
prior consent be in writing. Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Report
and Order, 27 FCC Rcd. 1830, 1838 (2012). The disclosures generating such consent must be “clear
and conspicuous” such that the notice they provide would be apparent to a “reasonable consumer.”
Karpilovsky v. All Web Leads, Inc., No. 17 C 1307, 2018 WL 3108884, at *5 (N.D. Ill. June 25, 2018)
(Leinenweber, J.). An exception to this general rule exists, however, for a “one-time text” sent in
response to a consumer’s request for information that contains only the information requested by
the consumer with no other marketing or advertising information. In re Matter of Rules and Regulations
4

Case: 1:17-cv-09219 Document #: 101 Filed: 04/01/19 Page 5 of 7 PageID #:632

Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 8015–16 at ¶ 104–106 (2015). In such
instances, a consumer’s prior express consent need not be in writing. Id.
Here, Yates texted “Burford” to the defendants, based on the expectation that she would
receive a coupon as a result. In response to that initial message, she received a message informing
her that in order to get that coupon she needed to reply with her zip code and, seemingly, consent to
receiving other deals in future. The defendants describe this as a “verification text,” intended to
ensure a record of the plaintiff’s unambiguous consent to opt in to the marketing program at issue.
This argument, however, is predicated on the assumption that those who texted “Burford” to the
defendants actually intended to opt in to a marketing program. Yates, however, alleges that she sent
the text believing only that she would receive a coupon for a free burger in response. Unfortunately,
Yates has not alleged the contents of the underlying communication that compelled her to send her
“Burford” text message, and it is therefore impossible to ascertain whether or not the defendants’
initial text message constituted a permissible one-time response to a request for information.
Yates further contends that all of the subsequent text messages that she received occurred
without her consent. Although Yates admits to replying with her zip code after being informed that
doing so would get her a “FREE Big Buford coupon & other deals from Checkers/Rally’s at this
#,” she claims that this language did not disclose that by agreeing to “other deals” she would receive
commercial advertisements sent by an automatic telephone dialing system. To the contrary, this
language expressly communicated that Yates would receive other deals from Checkers/Rally’s at her
phone number if she replied with her zip code, and she expressly consented to doing so by replying
to that message with her zip code. The Seventh Circuit has recognized that there is no distinction
between consenting to receive “deals” or “discounts” and consenting to receive mass marketing
texts conveying those deals or discounts. Blow v. Bijora, Inc., 855 F.3d 793, 804 (7th Cir. 2017).
Although the initial offer to convey “other deals” might itself have exceeded the scope of Yates’
5

Case: 1:17-cv-09219 Document #: 101 Filed: 04/01/19 Page 6 of 7 PageID #:633

consent, it cannot be argued that the subsequent messages were not consented to based on the
allegations in the complaint.
Yates also contends that the defendants violated the TCPA by failing to disclose how to optout of receiving future text messages from the defendants in every text message. 47 C.F.R.
64.1200(b)(3) requires that artificial or prerecorded voice telephone messages including an
advertisement or constituting telemarketing provide an automated opt-out mechanism. The
defendants therefore contend that the text-messages at issue are outside the scope of the TCPA’s
opt-out requirements which apply only to voice messages. Yates, in response, points to a number of
administrative decisions that she contends require opt-out disclosures. Those decisions are
inapposite. The FCC has recognized that text-messages are “calls” for the purpose of the TCPA
and has, in specific contexts, required that text messages contain opt-out provisions where they are
being sent without the full protections of the TCPA. See in re Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, 30 F.C.C.R. 7961 ¶ 64 (2015) (discussing the requirement
that text messages from shippers seeking an exemption from the TCPA must contain an opt-out
mechanism); In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Report
and Order, 31 F.C.C.R. 9074 (2016) (applying a similar opt-out requirement to government debtcollection calls exempted from the TCPA’s consent requirement by the Bipartisan Budget Act of
2015). Yates, however, has failed to offer any legal authority establishing that the requirements of 47
C.F.R. § 64.1200(b)(3) are applicable to text messages absent administrative action. See Reese v.
Marketron Broadcast Solutions, Inc., No. CV 18-1982, 2018 WL 2117241, at *6 (E.D. La. May 8, 2018)
(dismissing identical claims based on the failure to allege receipt of artificial or prerecorded voice
telephone messages).
As a final matter, the defendants assert that Yates cannot state a claim under the TCPA
because she manufactured the harm that she now complains of by opting into the defendants’ text
6

Case: 1:17-cv-09219 Document #: 101 Filed: 04/01/19 Page 7 of 7 PageID #:634

messages. Although such an argument may be appropriate once evidence of Yates’ motives is
before this Court, there is nothing presently before it to suggest that Yates falls outside the TCPA’s
scope of protection.
Conclusion
For the foregoing reasons, the defendants’ motion to dismiss [65] is granted in part and
denied in part. Yates’ TCPA claims are dismissed with the exception of her claim that she did not
consent to receive the initial text message from Checkers.

IT IS SO ORDERED.
Date:
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Court Judge

7