DOUBLE WHAMMY: New GREAT Ruling Confirms Offers to Buy Are not Solicitations and Helps on ATDS Issue

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Love seeing a little “two birds with one stone” action in TCPAWorld.

In Wilbor v. Gg Homes, Case No.: 21cv226-LL-BGS, 2022 U.S. Dist. LEXIS 52065  (S.D. Cal.  March 22, 2022) the Honorable Linda Lopez issued a fantastic opinion affirming both that targeted text messages do not trigger the TCPA’s ATDS provisions and that offers to purchase property are not solicitations under the TCPA’s DNC rules.

Great stuff.

At issue was the following text:

Hi Glenn, I’m an investor and contractor in San Diego. Do you have any off-market deals or packet listings that might make a good “fix and flip” project? We’re buying aggressively in 2021 and you can double end or even triple end the deal! – Eric @ GG Homes

The Court found that since the Plaintiff’s name was actually Glenn the text could not have been random-fired but was, instead, curated from a list:

These allegations, upon which Plaintiff relies in his opposition, essentially admit that the device allegedly used by GG Homes does not randomly or sequentially generate phone numbers because it requires numbers to be targeted from a particular source then uploaded from a list. 

In the Court’s view these allegations are insufficient because only devices that generate phone numbers randomly or sequentially qualify under Facebook. 

Now caution is urged here, of course, because that’s not quite what Facebook actually says–but no need to spoil a good ruling!

Moving on to the second piece of good news, the Court affirmed–as many other courts have found–that offers to purchase a home or other goods or property are not solicitations:

The texts at issue are inquiries as to whether Plaintiff had any “off-market deals or packet listings that might make a good ‘fix and flip’ project” because the sender was “buying aggressively.” These are offers for the purpose of procuring property, not “encouraging the purchase” of property.

So case dismissed!

Nice, clean and elegant.

I will note–as I did with a recent win Navient managed recently–the Plaintiff here did not have an attorney. Which makes it a GREAT case to take to the mat.

Nicely done GG Homes (and you Christine!)

 

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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