November 20, 2015

tcpa-class-actionOn November 17, 2015, the United States District Court for the Central District of California dismissed a class action complaint filed against Microsoft Corporation (“Microsoft”) alleging violations of the Telephone Consumer Protection Act (“TCPA”). The Court found that the plaintiff, as well as the proposed class members, knowingly released their contact information to Microsoft. Accordingly, according to the TCPA class action complaint, the subject text messages sent by Microsoft could not violate the TCPA.

Why Didn’t Microsoft’s Text Messages Violate the TCPA?

TCPA Class Action Dismissed Against Microsoft

According to the complaint, Microsoft violated the TCPA because, among other things, “[i]nstead of obtaining express written consent prior to sending repeated text message solicitations, Microsoft lures potential customers to provide their mobile phone numbers in response to misleading sweepstakes and discount promotions.” Both class representative plaintiffs responded to Microsoft promotional advertisements, such as “Text SURPRISE to 29502 to find out how to win great prizes!” After the plaintiffs texted one of the subject phrases to Microsoft, Microsoft responded with text messages concerning the specific promotions.

The TCPA class action complaint did not allege that Microsoft failed to provide adequate disclosures in the subject sweepstakes or promotion-registration process. In its motion to dismiss, Microsoft pointed out that the “Plaintiffs voluntarily request[ed] from Defendants information regarding Microsoft promotions and products, [and] Plaintiffs also received the exact information they requested. Plaintiffs now claim that they never wanted such information, and that Defendants deceived them into providing their mobile numbers . . . .”

The Court agreed with Microsoft and found, by knowingly providing mobile phone numbers to Microsoft, “Plaintiffs gave permission to be texted at that number by an automated dialing machine.” The Court ultimately held that the plaintiffs themselves initiated receipt of the subject text messages and that “Plaintiffs not only unequivocally expressed their interest in learning more about Microsoft’s promotional offers, [] they also provided their consent to receive that information through text messaging.” Accordingly, the complaint against Microsoft was dismissed and the Court prohibited the plaintiff from filing an amended complaint.

Protect Yourself

The victory secured by Microsoft demonstrates (at least in the Central District of California on this set of facts) that when a consumer knowingly releases his or her mobile phone number to a company, without restriction, having been provided adequate disclosures that text messages will be sent to the consumer, that consumer is deemed to have provided prior express written consent under the TCPA to receive text messages from the sender.

If you are interested in learning more about this topic, please visit the Telemarketing Law practice area of our website. If you have been served with process concerning the TCPA or your marketing practices, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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