Well here’s a fun one. How did I overlook it for a month?
A non-profit organization in Michigan got itself into hot water for texting “Eid Mubarak” to local residents—including a fellow named Ty Kempton who sued the relief organization seeking millions of dollars in a class action brought pursuant to the Telephone Consumer Protection Act (“TCPA”).
That a non-profit might face crippling exposure in a federal lawsuit for reaching out and saying “Eid Mubarak”—a traditional Muslim greeting reserved for the holy festivals of Eid al-Fitr and Eid al-Adha—is news by itself, but how the case ended up in and out of courts in Arizona and Michigan is really quite the tale.
In Kempton v. Life for Relief & Dev., No. CV-19-02156-PHX-DJH, 2019 U.S. Dist. LEXIS 178225 (D. Az. Oct. 15, 2019) an Arizona court sent the Plaintiff packing and required him to pursue his class action, if at all, in Michigan. This is true although a Plaintiff usually can choose to sue a Defendant in any court where the Defendant does business or has “minimum contacts.” And the Plaintiff in Kempton actually resided in Arizona making the transfer all the more unusual.
In Kempton, however, the Court found the Plaintiff was engaging in forum shopping—looking for a more favorable venue to bring his TCPA claim. The Court did not take kindly to this frowned upon practice and rejected the Plaintiff’s bid to take advantage of the Ninth Circuit’s more favorable laws.
For the uninitiated, the TCPA prevents certain calls and texts made without consent. Where illegal these texts can be very expensive–$500.00 per is the minimum penalty (probably). However unsolicited text messages are only illegal if they are sent using an “automated telephone dialing system” or ATDS, for short. The law on what is, and is not, an ATDS is so messy that TCPAWorld.com literally has an entire page dedicated to tracking the developments and case law ebb and flow on the issue. But suffices to say that the Eastern District of Michigan is one of the best places in the nation for a Defendant to litigate a TCPA case because the precedent there is very favorable on the definition of ATDS. Conversely, the D. of Arizona—nestled within the confines of the Ninth Circuit—is one of the worst places on Earth to litigate for Defendants because any dialer that calls from a list constitutes an ATDS under prevailing law.
While it might sound weird that the outcome of a lawsuit turns so entirely on where the suit is brought—TCPAWorld residents are well aware and used to this reality by now. But Plaintiff—who resides in Arizona—apparently retained counsel that does not follow TCPAWorld.com. As such they elected to initially file suit in Michigan—a pretty serious mistake (IMO) for a Plaintiff hoping to bring a successful TCPA class action. Numerous cases in that district have held that a dialer is only an ATDS if it can randomly and sequentially generate numbers and dial them. That is a way higher bar than in Arizona where, again, anything that texts automatically qualifies.
So Plaintiff’s original complaint—the one filed in Michigan—was met with a motion to dismiss raising the positive case law in that jurisdiction. In the face of the motion the Plaintiff dismissed the case, only to re-file it a few weeks later in Arizona.
Recognizing that it would be foolish to move to dismiss the complaint in the new jurisdiction the Defendant wisely moved to transfer the case back to Michigan where it came from. While these motions are not commonly granted, in Kempton the court was convinced that the Plaintiff was merely trying to pick a more favorable set of laws to sue under and did not actually consider Arizona to be a more convenient forum to litigate. On the other hand the Defendant really wanted to be in Michigan—where all its witnesses and documents were—so the Court elected to send the Plaintiff packing and back to Detroit.
Kempton is a fascinating case for a number of reasons. First, holiday greetings can get you in trouble just like any other unsolicited text—so keep it in mind. Second, the split in authority between the circuits is really starting to create very clear incentives for Plaintiffs to pick forums within the Ninth Circuit. Third, Courts continue to be mindful of “forum shopping” conduct—especially in TCPA cases—and will send a Plaintiff packing—even away from his own residence—where forum shopping is suspected. Good stuff.