HELPFUL AGAIN!: Another Court Limits Reach of TCPA’s Solicitation Definition as “Common Sense” Is Suddenly Stylish in TCPAWorld

Good things come in twos, at least this week in TCPAWorld.

Just yesterday I reported on a case of a court limiting the TCPA’s DNC rules in the context of messages sent in connection with a contractual inspection provision:

HELPFUL!: Court Holds Pest Control Inspection Calls Were Not Telemarketing Under the TCPA and It Really Helps Put Things into Perspective

Well today we have another example of a court limiting the TCPA DNC solicitation definition–this time in the context of recruitment messages.

In Anderson v. Nexa Motgage, 2024 WL 3762098 (C.D. Cal. Aug. 12, 2024)
a court faced a case involving text messages to a mortgage broker encouraging the broker to join the Nexa brand and keep more commissions.

The messages were sent by a recruiting manger and lauded the benefits of working with Nexa.

Relying on the general rule that offers of employment are not solicitations under the TCPA the court concluded the messages were informational:

Here too, the primary purpose of the challenged communications was to encourage Plaintiff to enter into an independent contractor relationship with Defendant. The text messages and calls were initiated by a man who described himself as a “recruiting manager with” Defendant. FAC ¶ 20. The content of the messages also illustrate that they were not recruitments, not solicitations. The messages described the benefits of working for Nexa as a mortgage banker. See id. ¶ 14 (“As a Mortgage Banker, you can offer better correspondent pricing and earn higher commissions by charging what YOU want on the front and back end without having to disclose your compensation.”). They also detailed how Plaintiff would be compensated for his services. See id. ¶ 19 (“[Y]ou keep 100% of the commission.”). In other words, the text messages describe the loan products that Plaintiff would sell to others, and how he would be compensated for those sales

Good stuff.

Interestingly, the court reached this conclusion even though Nexa would charge a fee for the service:

Plaintiff resists this conclusion by pointing out that Defendant charges an administrative fee for its services. Opp’n at 4; FAC ¶ 19. Because Defendant charges a fee for the described services, Plaintiff argues that Nexa was selling him a product. Id. However, the text messages stated that Plaintiff could pass the administrative fee along to potential customers. See FAC ¶ 14. The ability to include the administrative fee in the price Plaintiff would charge others only reinforces the conclusion that the communications sought to recruit Plaintiff to work for Defendant.

That’s a pretty nice win for the defendant. The fact that a fee would be charged to the call recipient does suggest a service is being “sold.” Then again, a cost in connection with the services being provided by the broker to the consumer only makes sense in this context so I see where the court is coming from here as well.

Either way this is a massive win for the defense and another critical case for TCPA defendants to keep in mind when looking for the line between marketing and informational messaging.

The court also granted the defendant’s motion to dismiss the ATDS claim–no surprise there as only random-fired text messages meet the definition in the Ninth Circuit. The Court also tossed Plaintiff’s prerecorded call claim noting that an allegation of a “long pause” is not enough to find the message was prerecorded.

So great win here and more very nice case law for TCPA defendants caught up in a “gotcha” DNC class action.

For a comprehensive look at the law on this subject–and everything TCPA–be sure to get a copy of Troutman Amin, LLP’s 2024 TCPA Annual Review, presented by Contact Center Compliance — yours FREE for the taking:

SEVENTH DAY OF CZARMAS!: IT’S HERE IT’S HERE IT’S FINALLY HERE!!!!–2024 Troutman Amin, LLP TCPA Review, presented by Contact Center Compliance is AVAILABLE NOW (FREE!)

Chat soon.