Figuero v. EverAlbum
Dismissed – EverAlbum allegedly sent unsolicited (ATDS) texts promoting its photo-sharing Ever app. The texts read:
“[Firstname (Middlenames) Lastname] just recommended you check out your photos on Ever. Link expires tomorrow: Tap to Load Preview.”
Plaintiffs claimed they were not customers or users of the Ever app, and never consented to the texts. Plaintiffs were both residents of Missouri.
The court observed that in order for the texts in question to be sent, the Ever app required a user to:
(i) grant the Ever app access to the contact list on a user’s phone
(ii) select the specific contacts (or select all contacts) to receive the invitation
(iii) press a button to cause invitations (text messages) to be sent to selected contacts
Thus, it was app users, and not EverAlbum that sent the texts. Since there was no evidence EverAlbum had any contact with Missouri (headquartered in San Francisco, California, with no offices, employees or assets in Missouri), the court lacked personal jurisdiction over EverAlbum.
[E.D. MO; 4:17-CV-1393]
jbho: Another case that indicates if you can introduce enough user interaction in the invitation process, you may be safe implementing forward-to-a-friend text message invitations.
Although the court stopped short of wiping out the TCPA claims altogether, the reasoning did follow recent decisions the 9th circuit, where the courts ruled affirmative choices by an app user make the user – not the app – the sender. See Reichman v. Poshmark (S.D. CA; 3:16-cv-02359) and Cour v. Life360 (N.D. CA; 4:16-CV-00805) where the courts considered checking and unchecking boxes were ‘affirmative choices by the app user’ called out by the FCC in its TextMe ruling.
Also, it didn’t hurt that plaintiffs admitted the texts were initiated by acquaintances.