Last week, a Washington federal judge, Robert S. Lasnik, dismissed a Telephone Consumer Protection Act (TCPA) class action against Twilio Inc. (Twilio) based on the finding that a text message did not constitute telemarketing if the text message completes a transaction.
The class action alleged that Twilio violated the TCPA by sending consumers text messages without prior express written consent as required by the TCPA. Lead plaintiff, Noah Wick, claimed that he saw an online advertisement for a free nutritional supplement and clicked the link to the supplement’s website, entered his contact information, but then discovered that no free sample existed so he closed the webpage. Soon after, Wick received a text message and a phone call, allegedly initiated by Twilio, encouraging him to divulge the remainder of his payment card information to complete the transaction.
Judge Lasnik, however, found that the text message was sent in response to a purchase negotiation that Wick himself started, and not sent as a means to sell him more products, and thus, did not violate the TCPA. Judge Lasnik determined that Wick provided his name, address, phone number and e-mail address, agreed to the offer’s terms and conditions and clicked on “Rush My Order” before closing the webpage, and said, “Whatever [Wick’s] subjective intent regarding making a purchase, the text message he received was aimed at completing a commercial transaction that he had initiated and for which he had provided his phone number.” Judge Lasnik said, “Plaintiff must raise a plausible inference that the message was somehow unfair or deceptive. He has not done so.”