GOLIATH WIN: Ninth Circuit Sides With Walmart over Nathan Barton

2 Comments

Walmart has $681BB in revenue and is an $854BB company by market cap.

Nathan Barton is some guy in Washington state who likes to sue people for calling him.

Not exactly a fair fight.

But Barton decided to spit in Walmart’s eye and took an appeal from a recent order granting the retail giant summary judgment in a TCPA case:

The core of the ruling was that transactional messages from Walmart related to curbside pickup notifications were not solicitations:

BARTON GOES DOWN AGAIN: Big Win For Walmart As Barton’s TCPA Claim Related to Informational Text Messages Ends in Summary Judgment

I love this ruling since I was the guy that basically invented the transactional message exception back in the old Aderhold case (also out of W.D. Wash.)

Regardless in Barton v. Walmart, Inc. 2025 WL 2977820 (9th  2025) the appellate court issued a summary affirmance of the lower court’s ruling:

The district court properly granted summary judgment for defendants because Barton failed to raise a genuine dispute of material fact as to whether Walmart Inc.’s text messages about orders previously placed on its website constituted “solicitations” within the meaning of the TCPA, see 47 U.S.C. § 227(a)(4) (defining “telephone solicitation” to mean “the initiation of a telephone call or message for the purpose of encouraging the purchase … of … goods”), or “commercial electronic text messages” within the meaning of the CEMA, see Wash. Rev. Code § 19.190.010(3) (defining commercial electronic text message as “an electronic text message sent to promote … goods … for sale”)

That’s it.

That’s the ruling.

And it is fair and reasonable in my view.

But the line between transactional and marketing does remain somewhat mysterious. I will be discussing this and other important topics at the ANA Masters of Advertising Law event November 4, 2025!

Chat soon.

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Published by Eric "Czar" 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.

2 Comments

  1. I just looked at the docket, the Amended Complaint is a 27 pages (well, 24 pages if you consider formatting, caption, attestation, signature block, etc.) I saw a lot of big time lawyers on the docket there, too. And pro-se. Remarkable.

    Talk about poking someone in the eye with a hot stick, What am I missing something, or is this super straight forward? Claimant orders something. Goes to pick it up, something something something about curb-side related to a consumer-initiated interaction involving commerce that the (pro se litigant) voluntarily engaged with the retailer, right? Am I missing something?

    I’m sort of with team Walmart with this one — from the face of it, it doesn’t seem that Walmart was the first person who had asked the individual to the dance, so to speak.

    Not an attorney. Not a judge.
    But I guess I’m entitled to how I’d see it had I been a jurist at trial with this fact pattern.

    Reply

  2. Yes, you are missing that Walmart was texting the wrong guy and the plaintiff asked them to stop three times before suing.

    Reply

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