On May 15, 2017, a federal district judge granted summary judgment in favor of Poshmark, Inc., dismissing a putative nationwide class action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(A)(iii) (“TCPA”). A copy of the order is available here.
Defendant Poshmark, Inc. (“Poshmark”) is an online clothing marketplace where users can buy and sell used clothing and other fashion accessories from other users’ “closets.” Users can also “follow” others’ closets if they choose, in an effort to gain more exposure on the marketplace.
Poshmark developed a mobile application (“app”) relating to its marketplace, providing users with an additional platform available on their mobile devices to list items for sale, upload pictures of items, browse, shop, and purchase goods from other users. Like many other apps, Poshmark’s app allows registered users to send invitations to their friends and contacts, inviting the contacts to join. Invitations can be sent in a number of ways, including sending text messages to contacts whose telephone numbers are saved in the user’s mobile device, or to users’ contacts on social media, such as Facebook and Twitter.
In September of 2016, Christopher J. Reichman (“Reichman” or “plaintiff”) filed suit against Poshmark in the U.S. District Court for the Southern District of California, after receiving two text messages on his cell phone, both containing invitations to join Poshmark. Reichman alleged that Poshmark violated the TCPA, and he sought to represent a nationwide class of all persons and entities “to whose mobile phones POSHMARK and/or its agents transmitted a text message without prior express written consent anytime from September 15, 2012, to the present.”
Poshmark moved for summary judgment, arguing that Reichman’s TCPA claim failed because Poshmark did not send or “make” the invitational text messages within the meaning of the TCPA. Poshmark argued that one of Reichman’s former clients took affirmative steps to send the text invites to Reichman, who was saved as a contact in the client’s phone. Thus, Poshmark argued, it had not “made” the text messages and therefore, based on the plaintiff’s own assertions, had not violated the TCPA. The court agreed with Poshmark.
The TCPA makes it unlawful to “make any call,” which includes sending of a text message, without the prior express consent of the called party, “using any automatic telephone dialing system . . . to any telephone number assigned to a cellular phone service.” The TCPA does not define the phrase “to make any call.” In concluding that Poshmark did not “make any call,” the district court relied on past guidance provided by the Federal Communications Commission finding that the TCPA is not necessarily violated by a company when an app user takes multiple affirmative steps to “make” an invitational text message, rather than the company sending it itself.
Plaintiff did not dispute that affirmative steps, independent of Poshmark, must be undertaken by a user of the app before an invitation message or text message would be sent. Instead, plaintiff argued that Poshmark had not adequately informed users of the method by which invitations would be sent, but Poshmark provided evidence that its app informed users whether their invitations would be sent via text or email. Further, plaintiff argued that whether Poshmark had “knowledge” that its users were violating the TCPA was a genuine issue of material fact precluding summary judgment. But the court was not persuaded, ultimately concluding that plaintiff’s conclusory allegations, made in the face of the undisputed record, were insufficient to establish a genuine issue of material fact.
The Poshmark decision suggests that companies may be able to avoid TCPA liability for certain text messages if they are sent by an app that sufficiently informs the user of what method will be used to send the invites, and that requires registered users to take multiple affirmative steps before sending text message invitations to join the service.
