On December 3, 2019, Lucin Trim registered her mobile phone number in the State Register Do Not Call (DNC). She later filed a lawsuit against TCPA after receiving two text messages over the phone from Maivenn, Inc.
The first, which she received on April 24, 2020, read: “When do you want something fun, fast and protective for your hair? WIG. Buy these ready-made clothes… ”The second text, sent on May 4, 2020, read:“ Mother’s Day is coming soon. Forget the florist, what she really wants is a wig. Contactless delivery goes straight to her door…. ”
Trim claimed that she never gave her explicit written consent to receive text messages from Maven.
Maven responded with a multiple motion for summary judgment, arguing that Trim did not have a power of attorney because she was a TCPA professional prosecutor, had a business relationship (EBR) with Trimo and was not protected by the DNC Registry because she used a business phone. and not for residential purposes.
U.S. District Judge Maxine M. Longy rejected all three arguments, rejecting the request.
She began by claiming that Trim is out of TCPA’s area of interest because she is a professional TCPA prosecutor who submits TCPA actions “as a means of generating revenue”, with 12 other lawsuits filed by Trim in the last four years.
While the court acknowledged that some district courts have determined that TCPA may not cover the interests of plaintiffs filing TCPA lawsuits as businesses under certain circumstances, it also noted that the U.S. District Court of Appeals, Ninth District, stated that the term “professional” is not a “dirty word.” “.
Maven has not provided evidence that Trim wants to receive or attract calls through telemarketing, or that any of its TCPA actions are frivolous, Judge Chesney said. Nor did her failure to respond with a “STOP” message after receiving the first text show that Trim took steps to allow the injury to continue while making a record to facilitate a later claim, she added, dismissing Maven’s standing argument.
Judge Chesney then addressed the question of whether Maven and Trim had EBR, defined as “a previous or existing relationship formed by voluntary two-way communication between a person or entity and a residential subscriber” based on a subscriber’s inquiry or application regarding the entity’s products or services. within three months immediately prior to the date of the invitation, which the relationship has not previously been terminated by either party. “
Maven pointed to Trimo’s entry into the sweepstakes to get free products and services as a creation of their EBR.
Trim retorted that while the Federal Communications Commission (FCC) has not answered the question of whether consumer entry into the sweepstakes could create an EBR for the purpose of the TCPA exemption, the court should adopt the Federal Trade Commission’s (FTC) interpretation of an identical EBR exemption. is in the Telemarketing Sales Policy (TSR), which states that the sweepstakes entry form does not generate an EBR.
The court agreed.
After the FTC created the DNC Registry, Congress instructed the FCC to consult and coordinate with the FTC to “maximize consistency” between the non-call rules in the TCPA and the TSR.
In light of this, the “TCPA EBR exemption should be interpreted in a way that“ maximizes[s] consistency “with an identical exception provided for in the TSR”, wrote Judge Cezni. “Accordingly, the court considers that Maven cannot ‘bypass’ [DNC] Register using [Trim’s] entering sweepstakes as a way to take advantage [EBR] exemption. ‘”
Finally, Maven failed to convince the court that Trimo’s alleged use of her mobile phone for business purposes removed the protection of the DNC Registry.
A dispute remained over the material facts as to whether Trim qualified as a “residential subscriber” for the needs of the TCPA, the court said. Although Maven provided evidence that Trim used her mobile phone for sales calls to potential customers of her employer, there was also evidence that she used a special number given by the employer for calls to customer service.
Drawing all the conclusions in favor of Trim, “the court believes that a reasonable jury could conclude that Maven’s texts were sent to a private subscriber,” Judge Chesny wrote.
To read the order in Trim v. Maivenn, Inc.., click here.
Why it matters: The court rejected all the arguments of the defendant in favor of the summary judgment, ruling that the plaintiff did not push 12 other TCPA lawsuits out of the statute of interest, that entering the prize game does not establish the EBR for legal exemption and that there was a dispute over whether the plaintiff qualified as a residential subscriber.