Law Conference of Champions V Ticket Prices as I type: $309.00 (and rising).
Where you litigate sometimes matters as much as the underlying facts– especially in TCPAWorld.
This is not just an issue of convenience. Sure, everyone wants to be in their “home court” but many times the substantive law is critically different in different locations.
Now technically that shouldn’t be possible– there is no federal “common law” (that’s called the Eerie doctrine) and we are all supposed to live under the laws of one unified nation based on federal statutes– but that’s all nonsense.
The truth is federal courts apply different substantive rules all the time based on their own views of the law– and recent Supreme Court cases have made this phenomenon even more prevalent as previously-required deference to agency determinations has been thrown out the window. So individual district court judges now have tremendous power to interpret vague statutes– and since Congress doesn’t really know how to write law anymore they’re all vague– and appellate courts are essentially all writing on a blank slate.
In the TCPAWorld this has manifested in amazing new rulings– most notably the split as to whether SMS are “telephone calls” for TCPA DNC purposes. Some jurisdictions (like in California) the answer is “yep.” Other jurisdictions (like Illinois) the answer is “no.”
So whether the exact same conduct is illegal in a case depends entirely on where you might be sued– and not the underlying facts. Cray right?
Well in Fruend v. Groupon, Inc. 2026 WL 3073665 (N.D. Cal. Oct. 14, 2026) Groupon had the marvelous foresight to include a venue selection clause requiring consumers to sue it, if at all, in Illinois.
It was sued in a TCPA class action involving SMS messages and it wisely moved to enforce the venue selection requirements of its Terms of Use.
The Court reviewed the form, determined it provided reasonably conspicuous notice, and sent the plaintiff packing to Illinois– to the likely doom of his case.
Now I suppose there is some argument the Illinois district court should apply Ninth Circuit law since that is where the suit was initiated and the clause at issue was a venue selection clause and not a choice of law provision (that may also have been in there some place but it wasn’t at issue in the ruling) but I am unaware of any cases where that has occured.
Translation: by winning the venue battle Groupon appears to have just won the case.
Really nice win and an obvious lesson for those concerned about TCPA class action risk– choose venues where the TCPA law is more favorable.
If you need a hint, here’s a map to help you out. Haha.
Speaking of help, check out Deserve to Win 53 with Chris Michelson of Medicare Compliance .com ad EnrollHere. Before the interview we breakdown the latest on the SMS split and other key TCPA rulings. Must watch.
Chat soon!