Recent unpublished Ninth Circuit TCPA opinion worth citing in other cases, attorney says

By Karen Kidd | Mar 17, 2016

From Morguefile   From Morguefile

SAN FRANCISCO (Legal Newsline) – An opinion out of the U.S. Court of Appeals for the Ninth Circuit about a Telephone Consumer Protection Act (TCPA) case didn't deserve to be classified as "unpublished," a defense attorney says.

Unpublished opinions are not unusual in very clear cases when reaching a decision is very easy and there doesn't appear to be much to gain from issuing a lengthy opinion, said Christine M. Reilly, a partner at Manatt, Phelps & Phillips in Los Angeles and co-chair of its TCPA Compliance and Class Action Defense practice group.

Unpublished opinions are not to be cited in other cases. But Reilly seems some value in the opinion.

"I'll be citing it," Reilly said.

The Ninth Circuit handed down its unpublished opinion Feb. 3, affirming a lower court ruling dismissing the class action lawsuit Baird vs Sabre, Inc.

"It seems that the Ninth Circuit just didn't consider this to be a difficult, tough or even unclear decision," she said.

Despite that, the case does merit a closer look as there are some valuable lessons to be gained in the case, Reilly said. These include, she says: 

-Differences between information and marketing text messages;

-Affirmation that consent to receive text messages from one company extends to the company's contractor; and

-The sobering realization of how little is required to file a putative class action lawsuit.

The lawsuit was filed Feb. 11, 2013 by Shaya Baird, who previously booked flights online for herself and her family on Hawaiian Airlines' website. Prompted by the statement "At least one phone number is required," Baird entered her cell phone number. 

A few weeks later, about one month before the flight, Baird received a text message from Sabre, Inc., a global technology company contracting with Hawaiian Airlines to provide flight notification services. The text message asked if she would like notifications about her upcoming Hawaiian Airlines flight and to reply "yes" if she did.

Baird did not respond to the text message on her phone, but she did file a putative class action lawsuit in U.S. District Court for Central California alleging that Sabre violated the TCPA when it sent the one unsolicited text message.

Baird's case had a rough time from the start. That summer, the federal judge in the case threw out the lawsuit, saying Baird failed to show she suffered any economic injury from the text message or that she had standing to bring a California Unfair Competition Law claim. She was, however, given two weeks to amend her complaint, which she did.

The case was dismissed early the following year. In its Jan. 28, 2014, order granting Sabre's motion for summary judgment, the U.S. District Court for Central California agreed with Sabre's argument that Baird consented to receive the text message.

Sabre argued Baird did that by voluntarily providing her cell phone number during her online reservation with Hawaiian Airlines. This was true, Sabre argued, despite the fact she'd provided her cell phone number to Hawaiian Airlines, not to Sabre.

Baird then appealed to the U.S. Ninth Circuit Court of Appeals. In its unpublished opinion, the Ninth Circuit affirmed the lower court’s ruling that dismissed class action lawsuit, agreeing that the defendant was not liable under the statute because Baird had provided consent to be contacted.

To reach that affirmation, the court relied upon the Federal Communications Commission's 1992 Order that prescribed TCPA regulations. Those regulations dictate that anyone who knowingly releases their phone numbers also provides their consent to be called at that number unless they give instructions otherwise.

"Baird expressly consented to the text message in question when she provided Hawaiian Airlines with her cellphone number," the ruling said.

"Baird knowingly released her phone number to Hawaiian Airlines while making a flight reservation. She did not provide any 'instructions to the contrary' indicating that she did not 'wish to be reached' at that number."

Baird's next stop, if she chooses to appeal, would be the U.S. Supreme Court, but that isn't likely, Reilly said. Even if Baird were to appeal, it's unlikely the high court would hear the case because it doesn't call into question any constitutional or legally conflicting questions, Reilly said.

However, examining the case could bring up some interesting observations in terms of more solidly defining consent when it comes to text messages. In addition to TCPA regulation, the Ninth Circuit has had only two cases to refer to in such matters.

The first was the 2009 Satterfield v. Simon & Schuster, Inc, mentioned in the unpublished opinion. In that case, the Ninth Circuit concluded that consenting to receive calls from one business does not constitute consent to receive calls from a different business.

That would seem to support Baird, but the unpublished opinion indicates the court didn't see it that way.

"A similar situation exists here," the unpublished opinion said. "Baird provided her phone number to Hawaiian Airlines, but was contacted by Sabre. However, unlike in Satterfield, Sabre is a vendor for Hawaiian Airlines and contacted Baird regarding her reservation.

"The district court made no distinction between Sabre and Hawaiian Airlines because of the relationship between the companies, and Baird does not make any argument based on this distinction."

The other case, Emanuel v. The Los Angeles Lakers, Inc., was another putative class action lawsuit. This case was brought by a ticket holder who accused the basketball franchise of sending him unsolicited text messages. That case ended when the plaintiff withdrew his own appeal.

The Baird case does point out two lessons, Reilly said. The first is that the text messages in question contained information and were not for marketing purposed.

"The ruling would have been very different if the messages had been marketing in nature," she said.

The second lesson is that consent to receive text messages is not only to the first business but also extends to whoever the business contracts with to handle those text messages.

"I think that definitely provides some comfort for defendants," Reilly said.

A final lesson in this case is that it points out how easy it is to file a class action lawsuit, Reilly said.

"This was, literally, over one text message," she said. "She filed a class action lawsuit over one text message. It takes only one text message launch a class action complaint in this country."

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