The use of a “STOP” notification in a text message—as well as a dedicated 1-833 toll-free number and the generic nature of the message—may indicate the use of an automatic telephone dialing system (ATDS), an Illinois federal court recently held.
On November 21, 2019, Asif Poonja received a text message from the phone number 1-833-650-4026. The message stated: “Immediate openings for warehouse associate/machine operator roles in Lake Zurich, IL. 1st shift & 2nd shifts available starting pay rate at $15/hr. and up. If interested, please call us at 847-995-9350, email us at 2423@kellyservices.com, or text back.”
At the bottom of the text was an additional message: “(Reply STOP to stop anytime).”
Poonja filed suit, accusing Kelly Services of violating the Telephone Consumer Protection Act (TCPA), and seeking to certify a nationwide class of text recipients.
Kelly filed two motions to dismiss. First, the company argued that Poonja did not adequately plead that the text message in question was generated by an ATDS.
In its second motion, Kelly contended that the court lacked subject matter jurisdiction on the basis of Barr v. American Association of Political Consultants, the 2020 U.S. Supreme Court decision that invalidated the so-called government debt exception to the TCPA on First Amendment grounds.
According to Kelly, the presence of the government debt exception between 2015 and 2020 rendered the entire autodialer restriction in the TCPA unconstitutional and thus unenforceable.
U.S. District Court Judge Robert M. Dow Jr. denied both motions.
He began with the sufficiency of Poonja’s complaint. Kelly characterized the allegations as “barebones and amount[ing] to rank speculation.”
“But, as many judges in this district have recognized, ‘it is unclear how plaintiffs can plead the technical details of the system used by the defendant when the defendant has that information,’” Judge Dow wrote.
The court looked to other Illinois decisions where plaintiffs have pointed to the generic nature of text messages and the use of dedicated SMS numbers to indicate the involvement of an ATDS at the pleading stage.
“Consistent with these cases, plaintiff’s allegations of a generic message, sent by a 1-833 number, with ‘STOP’ and ‘text back’ functionality suffice to survive a motion to dismiss,” Judge Dow concluded.
He also refused to strike Poonja’s claim for treble damages or the class allegations.
Turning to Kelly’s second motion to dismiss, the court relied heavily on the Sixth U.S. Circuit Court of Appeal’s recent decision in Lindenbaum v. Realgy, LLC, interpreting Barr v. AAPC.
“The Sixth Circuit and the overwhelming weight of district court authority have concluded that the combination of the three-Justice plurality and the four additional Justices who agreed that the 2015 amendment was severable from the rest of the TCPA leaves intact the autodialer restriction on which plaintiff here relies in his complaint,” Judge Dow wrote.
When the Supreme Court construes a statute, its holding states what the statute has meant continuously since the date when it became law, he added, and the Supreme Court’s controlling interpretation of federal law must be given full retroactive effect in all cases still open on direct review and as to all events, regardless of whether the events predate or postdate the Court’s announcement of its interpretation.
Accordingly, the court denied the second motion to dismiss.
However, noting that “a single text message is a thin basis upon which to launch full-blown discovery on a putative nationwide class action,” Judge Dow phased discovery so that the parties would first discern whether Kelly did in fact use an ATDS to send the text message in question and then how far and wide the message was sent (i.e., locally or across the nation).
To read the opinion and order in Poonja v. Kelly Services, Inc., click here.
Why it matters: In addition to following the Lindenbaum ruling and finding that the Supreme Court severed the government-backed debt exception in Barr v. AAPC, leaving the rest of the TCPA in place, the court found that allegations of a generic message sent by a 1-833 number with a “STOP” notification were sufficient to plead the use of an ATDS in order to survive a motion to dismiss.