Here is the text of the Law360 story:
Facebook Escapes TCPA Suit Over Hack-Alert Texts
By Bonnie Eslinger
February 16, 2017
A California federal judge on Thursday tossed a proposed Telephone Consumer Protection Act class action against Facebook Inc. from a man alleging he was bombarded with unwanted security notification text messages from the social media giant, saying the man hadn’t shown the alerts were unlawfully autodialed.
Plaintiff Noah Duguid’s proposed class action, first filed in March 2015, accuses Facebook of spamming cellphones with text messages in violation of the TCPA, which prohibits automated calls to a cellphone without prior express consent by the person being called, unless it’s an emergency. Duguid, who said he does not have a Facebook account, received numerous automated “login notification” and “login approval” messages via text — security features designed to let users know when their account has been accessed from a different place.
Last year, U.S. District Judge Jon Tigar granted Facebook’s motion to dismiss the suit, calling allegations the messages are sent via autodialer “conclusory,” but gave Duguid permission to amend his complaint.
In his 10-page ruling Thursday, Judge Tigar said Duguid still hadn’t hit the mark, dismissing the revised suit with prejudice.
“This is plaintiff’s second attempt to plausibly allege the existence of an ATDS [automatic telephone dialing system] and he has been unable to do so,” the judge wrote. “Plaintiff does not offer any additional allegations that he could provide if given further leave to amend, and the court is unable to identify any, given that his current allegations strongly suggest direct targeting rather than random or sequential dialing.”
In his revised suit, Duguid alleged that Facebook uses a “computerized protocol for creating automated text messages programmed to appear customized to the user,” through a template-based process. He said Facebook then authenticates the unrecognized login by asking users to “enter a code” sent along with the text messages. The judge found the latter fact worked against Duguid’s complaint.
“It is unclear when Duguid believes these facts would strengthen the inference that Facebook sent text messages en masse using an ATDS,” the judge wrote. “To the contrary, allegations of customizable protocols and unique codes only further suggest, in line with Duguid’s other allegations, that the messages were sent through direct targeting.”
An attorney for Duguid, Sergei Lemberg of Lemberg Law LLC, told Law360 on Thursday that the decision will be appealed to the Ninth Circuit.
“We feel the court overlooked the specific pleading in the amended complaint having to do with the system’s capacity to generate random or sequential numbers. The plaintiff even provided code snippets that serve that purpose,” Lemberg wrote in an email.
A Facebook spokesperson said the company was pleased with the court’s ruling.
In prior court filings, Facebook has argued that Duguid’s complaint failed to establish anything random or sequential about the process in which his number was allegedly messaged. The messages are targeted to the specific phone of a user whose account was accessed, the company maintains.
In January, Duguid saw a glimmer of hope when a California judge in a separate case didn’t nix a suit over unsolicited and autodialed text message reminders about friends’ birthdays.
U.S. District Judge Thelton E. Henderson’s Jan. 27 decision in Brickman v. Facebook Inc. should keep alive his own complaint, Duguid told the court.
Colin Brickman had alleged that a text message he received from Facebook reminding him of a friend’s birthday violated the TCPA because it was sent using an ATDS that had the capacity to store and dial numbers randomly or sequentially.
Though Judge Henderson said it was a “close call” whether Brickman had alleged enough to support his TCPA claim, he concluded the plaintiff had alleged more than a conclusory allegation that Facebook used an ATDS to send out text messages by detailing exactly how the company’s software determines whom to text, how it gathers the contact information needed, how it creates the texts and how it sends them out, all without human intervention.
But Facebook fought back, telling Judge Tigar that Brickman was wrongly decided, because the federal judge in that case adopted an overbroad reading of the ATDS requirement that “gives no meaning to the ‘random or sequential number generator’ requirement.’”
Additionally, the Brickman decision did not involve an application of the “emergency exception” to the TCPA as Duguid’s case does, Facebook said.
Facebook is represented by Andrew B. Clubok, Carrie J. Bodner, Elizabeth L. Deeley, Devin S. Anderson 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.