Here’s an interesting case to end the day with.
Imagine you’re nationwide franchise—say Jiffy Lube. You have franchisees all across the country, some of whom do goofy things like (allegedly) sending telemarketing messages using an ATDS without consent. Set aside issues of agency for a moment—can you be sued, from a jurisdictional perspective, in states where franchisees operate but where you do not?
While you might guess “yes”—I mean deriving income from a business enterprise in the state feels like “minimum contacts to me—at least one TCPA case demonstrates why that is not necessarily the case.
In Turizo v. Jiffy Lube Int’l, Inc. Case No. 19-cv-61140-BLOOM/Valle, 2019 U.S. Dist. LEXIS 166100 (S.D. Fl. Sept. 24, 2019) the Court dismissed Jiffy Lube from the suit because the texts at issue—feedback survey type messages—were sent by a local franchise and not by the corporate parent. The Court found that Jiffy Lube had submitted a declaration that affirmatively demonstrated Jiffy Lube did not send the messages at issue, did not direct the messages to be sent, and did not exercise sufficient control over the franchisee—a wholly separate business—so as to be liable for the texts that were sent. Focusing on jurisdiction—again this was not an agency case—the Court determined that as Jiffy Lube took no actions respecting the forum or the Plaintiff in the suit the case had to be dismissed against it. Notably the Plaintiff did not introduce any affirmative evidence and tried to rely solely on the allegations in the complaint, so that may have driven the result.
One other bonus take away here: the Court applied the statutory definition—yay—and did so at the pleadings stage—yay—and determined that a message sending a feedback survey request demonstrated that the consumer had recently visited the Jiffy Lube franchise; i.e. that the message was not randomly or sequentially sent. Case dismissed. Awesome!
(Btw, that marks [pun?] a fourth analytic approach taken by courts in TCPA text message cases in the last week. Void for vagueness? Void for vagueness. Void for vagueness! But wait until I post on Wilson v. PH Phase One Operations L.P., Civil Action No. DKC 18-3285, 2019 U.S. Dist. LEXIS 166732 (D. Md. Sept. 27, 2019) tomorrow.)
TCPAWorld is so much fun.