In a recent ruling, a U.S. District Court for the Central District of California granted a defendant’s motion to dismiss a complaint brought under the Telephone Consumer Protection Act (TCPA). The complaint alleged that the plaintiff received multiple communications from the defendant despite not having provided prior consent and being on the National Do-Not-Call Registry. The court found that the communications were not “solicitations” under the TCPA because the messages were aimed at recruiting the plaintiff for employment and that the complaint insufficiently alleged that the defendant used an automated telephone dialing system (ATDS) or that the voicemail was prerecorded.
In Andersen v. Nexa Mortgage, LLC, the plaintiff alleged he registered his cell phone number with the National Do-Not-Call Registry in 2019. Despite this, he received three text messages and one voicemail from the defendant over a three-day period in March 2024. The communications were primarily aimed at recruiting the plaintiff to work for the defendant, offering him various benefits and compensation details. Based on these four communications, the plaintiff filed a putative class action lawsuit alleging two violations of the TCPA but failing to specify which provisions. The defendant moved to dismiss.
The court considered three potential theories of liability under the TCPA and concluded the plaintiff failed to state a claim under any of them. First, the court found that the communications were not “solicitations” under the TCPA, which could trigger consent requirements. The messages were aimed at recruiting the plaintiff rather than encouraging him to purchase goods or services. “The text messages and calls were initiated by a man who described himself as a ‘recruiting manager with’ [the defendant] … The messages described the benefits of working for [the defendant] as a mortgage banker … They also detailed how [the plaintiff] would be compensated for his services.” The plaintiff countered by pointing out that the defendant charges an administrative fee for its services, and thus was selling him a product. However, the court noted that the text messages stated that the plaintiff could pass the administrative fee along to potential customers, reinforcing its conclusion that the communications sought to recruit the plaintiff for work.
Second, the court found the plaintiff’s complaint lacked sufficient factual allegations to support the claim that the defendant used an ATDS, which could also trigger consent requirements. Specifically, the court found the plaintiff only conclusorily alleged that the defendant used an ATDS but provided no facts to support this conclusion. Whereas, the personalized nature of the messages, including the use of the plaintiff’s name, weighed against the plaintiff’s inference.
Lastly, the court ruled that the plaintiff did not provide enough factual details to show that the voicemail he received was prerecorded, another way that could trigger consent requirements. The plaintiff alleged that there was a “long pause” before the speaker began talking and that there were several delays throughout the voicemail. The court deemed that insufficient, finding, “[a]llegations of pauses alone, however, do not suffice to show that the message was prerecorded.”
The court dismissed the complaint with prejudice since the plaintiff had already been given leave to amend once, and further amendments would be futile.
The decision is good news for businesses that communicate with potential employees by text messages and provides a positive counterpoint for adverse rulings in the Eleventh Circuit finding that recruiting text messages could qualify as “telephone solicitations” under federal or state law.
