Here is the text of the Law360 story:
Facebook Fights Amended TCPA Suit Over Hack-Alert Texts
By Steven Trader
May 27, 2016
The man leading a proposed class action claiming Facebook violated the Telephone Consumer Protection Act by sending unauthorized text message warnings still hasn’t proven they were generated automatically, which got his complaint nixed the first time around, the social media giant told a California federal judge Thursday.
Facebook sought to dismiss amended claims by Noah Duguid that it knowingly violated the TCPA by sending him automated “login notification” and “login approval” messages via text — security features designed to let Facebook users know when their account has been accessed from a different place. The problem is that Duguid doesn’t have a Facebook account, never authorized the sending of those messages, and claims Facebook randomly generated his number from a database using an autodialer.
But Facebook says Duguid fails to present facts supporting his claim that the messages were sent through an automated telephone dialing system, which was the same issue that got his case dismissed earlier this year.
“The login messages at issue this time are the same login notifications alleged in the original complaint,” Facebook said. “Both are security messages sent to a single phone number that a Facebook user has associated with a specific Facebook account, warning about a specific security threat to that account from a specific browser or app at a specific date and time. Such login messages are a far cry from the type of impersonal, en masse communications that the TCPA prohibits.”
Not only that, but Duguid doesn’t even have standing to sue, given the Supreme Court’s recent decision in Spokeo v. Robins, which vacated and remanded a Ninth Circuit ruling that plaintiffs do not need to allege actual injury to maintain statutory claims.
Though the implications of that ruling have been widely debated, Facebook said Thursday the court made clear that “Article III standing requires a concrete injury even in the context of a statutory violation,” quoting the ruling.
“Here, plaintiff alleges no concrete injury beyond Facebook’s purported violation of the TCPA, and his amended complaint must be dismissed for lack of Article III standing,” the social media company argued.
The Montana resident first launched his proposed privacy class action in March 2015, claiming that Facebook started texting him the warning messages the previous year, even though he doesn’t have an account. Duguid alleged that he sent Facebook a number of emails complaining about the messages, but kept receiving automated replies telling him to log into his account to report the problem.
“Servicing over a billion Facebook accounts worldwide, Facebook’s automated systems are powerful and, when used improperly, capable of extreme invasions into the privacy of American consumers,” the complaint had claimed. “Facebook operates a sloppy system and in doing so shows complete disregard for the privacy of consumers.”
Still, even if the system is poorly run, Duguid hadn’t suggested that Facebook sends text messages en masse to randomly or sequentially generated numbers, U.S. District Judge Jon Tigar found in March, axing the suit but granting leave to amend.
Duguid filed his fixed complaint in late April, outlining how Facebook had acquired his number, stored it in a database connected to its telephone or computer system, and then used its system to sent text messages to his cellphone automatically, without human intervention. The messages from Facebook were not placed for “emergency purposes,” Duguid contended.
Yet that’s exactly what Facebook says they are for, writing Thursday that its login messages “fall squarely within the TCPA’s broad exception for any ‘calls made for emergency purposes,’” the social media giant wrote.
“Duguid has more than adequately pled that the messages were sent by a machine,” Sergei Lemberg of Lemberg Law LLC, an attorney for Duguid, told Law360 Friday.
Facebook is represented by Andrew B. Clubok, Carrie J. Bodner, Elizabeth L. Deeley and Susan E. Engel of Kirkland & Ellis LLP.
Duguid is represented by Trinette Kent, Sergei Lemberg and Stephen Taylor of Lemberg Law LLC.
The case is Noah Duguid et al. v. Facebook Inc., case number 3:15-cv-00985, in the U.S. District Court for the Northern District of California.