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Financial Services Law Insights and Observations

9th Circuit affirms lower court’s decision in TCPA suit

Courts Appellate Ninth Circuit TCPA Autodialer

Courts

On June 10, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s ruling on summary judgment that an individual’s text messages sent to a financial institution provided the express consent required under the TCPA to be contacted via an autodialer system. According to the opinion, the plaintiff, who was not a customer of the defendant, sent 11 text messages to the defendant’s short code number. Ten of the messages were unrelated to the defendant’s business, and the plaintiff’s messages were replied to with an automated message providing instructions about how to stop receiving text messages and how to contact the defendant. The remaining text message from the plaintiff to the defendant consisted of the word “STOP” to which the defendant replied with the response that plaintiff is not subscribed and will not receive alerts. These reply texts were the only text messages the defendant sent to the plaintiff’s mobile phone. Based on these facts, the plaintiff filed suit in the District of Connecticut, alleging that the defendant violated the TCPA by replying to his text messages using an automatic call-generating capability without obtaining the plaintiff’s consent. The defendant filed a motion to dismiss on procedural grounds, and plaintiff voluntarily withdrew the suit and subsequently sued in the District of Hawaii under similar facts and claims. The court granted the defendant’s motion for summary judgment, ruling that each of the texts sent to the defendant by the plaintiff constituted prior express consent to receive reply texts. The court also awarded attorneys’ fees to defendant as “costs” under Federal Rule of Civil Procedure 41(d).

The 9th Circuit agreed with the district court’s determination that the plaintiff “expressly consented to receive reply text messages.” With respect to the awarding of attorney’s fees, the appellate court recognized a circuit split on the issue of whether Rule 41(d) costs included attorney’s fees, and held that, (i) “costs” under Rule 41(d) does not include attorney’s fees as a matter of right and (ii) for purposes of the TCPA, “cost” does not include attorney’s fees because “it is undisputed that the TCPA does not provide for the award of attorney’s fees to the prevailing party.”