TRUMP CAMPAIGN FAILS TO ESCAPE TCPA’S CLUTCHES

Last fall TCPAWorld reported that President Trump’s campaign had been hauled into court for alleged Telephone Consumer Protection Act violations. Specifically, three Minnesota citizens brought a TCPA class action in the Federal District Court in Minneapolis, alleging that Donald J. Trump For President, Inc. had texted their cellphones without consent to promote campaign activities. https://tcpaworld.com/2019/10/21/trump-campaign-organization-a-tcpa-target/

Attempting to escape the TCPA’s statutory clutches, the campaign fired a salvo of arguments to Judge John R. Tunheim, all of which the Court parried in Dan Pederson, Connor Olson and Shell Wheeler v. Donald J. Trump For President, Inc., Civil No. 19-2735 (JRT/HB), United States District Court for the District of Minnesota, June 8, 2020.

First, the campaign argued that a few measly texts did not convey standing to bring the action in the first place; after all “unsolicited text messages are less burdensome and injurious than phone calls, voicemails, and faxes, and that a single text message is not enough to create standing.” Not so said the Court because “a text message, while a different format that a phone call, voicemail, or fax, presents at least an equivalent level of disturbance and injury, and thus constitutes a cognizable injury under the TCPA.” Further, the  injury was “causally connected” campaign because “it is plausible that a second unsolicited text, from an unknown number, including the phrase ‘stand with President Trump right now,’ and following shortly after an initial unsolicited text from the Campaign, is traceable to the Campaign, even if it does not include a link to the Campaign website.”

Next up, the Campaign asserted that the plaintiffs failed to sufficiently allege the use of an automatic telephone dialing system (ATDS). But the Court noted plaintiff’s allegation that the “Campaign uses ‘peer-to-peer text messaging which is an [automatic telephone dialing system] that sends text messages to lists of cellular recipients which have been uploaded by the Defendant’” and the texts were “generic” in nature (emphasis supplied). Coupled with no opportunity to conduct discovery about the “mechanics of the…Campaign’s dialing machinery,” Judge Tunheim ruled that “the allegations are plausible, and that is all that is required at this phase of litigation.”

But wait a minute!!  A device that simply automatically dials numbers uploaded from a list is not an ATDS. The statute says that an ATDS “must randomly or sequentially generate numbers, and not use an uploaded database or a stored list.” Given his druthers by the open-ended “state” of the law on this central TCPA issue, Judge Tunheim sided with the Marks logic side of the house and “would not read such a limitation [i.e., a requirement for random and sequential number generation] into the text of the statute.” Of course, that is what the statute says. Sorry, an uploaded list, automatically dialed is enough.

Having struck out on the standing and ATDS front, the Campaign tried two more escape hatches specifically from plaintiff Pederson’s claims, both of which hinged on evidence that “an individual entered Daniel Pederson’s name into the Campaign’s database, along with Pederson’s actual cell phone number.” Thus Mr. Pederson had “purposefully signed up with the Trump Campaign” and in doing so agreed to arbitrate such a dispute or beyond that consented to receive the texts in the first place.

As to compelling arbitration, the Court first must determine if “a valid agreement to arbitrate exists between the parties.” Although the Campaign produced evidence that Pederson’s name and actual phone number were entered in the database, Pederson claimed he did not do so, that other information entered was incorrect. Moreover, the Campaign produced no “additional information, such as location or IP data, to demonstrate that Pederson agreed to anything at all.” At this point, under the circumstances, the “Campaign has not carried its burden to demonstrate there was a valid contract with Pederson.” So no arbitration.

Nor could the presence of the name and number constitute proof of Pederson’s consent to receive the texts. Judge Tunheim agreed that “to the extent the Campaign argues that it acted in good faith belief that Pederson consented, it remains free to bring that affirmative defense at summary judgment.” But the Campaign has not shown that “it was Pederson who consented to receive texts.” Motion to dismiss him denied.

As an aside, the Court declined to stay the case pending the soon anticipated Supreme Court decision on TCPA constitutionality, casually observing “that it is unlikely that the Supreme Court will void the TCPA in its entirety.”

So this TCPA ship will sail on in the Land of 10,000 Lakes and TCPAWorld.

 

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