Coca-Cola TCPA Class Action Proceeds Over Two Text Messages

A federal judge has pared down text message class action lawsuit filed against Coca-Cola to three allegations.

U.S. District Judge R. David Proctor made his decision based on recommendations of Magistrate Judge John E. Otts on the defendants’ motion to dismiss the Coca-Cola TCPA class action lawsuit.

Plaintiff Wesley P. alleged in his class action lawsuit that in November 2011 he sent text messages in response to a display on a scoreboard at a college football game that prompted audience members to send a text message to a particular number to vote for their preferred team.

Wesley said he then received two text messages in response to his, the first one asking for his birth date and the second encouraging him to vote again for his preferred team.

Later, in 2012, Wesley filed the TCPA class action lawsuit against Coca-Cola Inc. and its marketing agent Mozes Inc., arguing that those text spam messages violated the Telephone Consumer Protection Act.

Wesley claimed that both unsolicited text messages had violated the TCPA, which among other things generally prohibits phone calls made with an automatic telephone dialing system or prerecorded voice to a mobile phone number. The judge denied the defendants’ motion to dismiss those claims, allowing them to go forward.

The judge cited a 1992 order by the FCC stating that persons who knowingly give out their phone numbers effectively consent to those numbers being used to call them.

But the judge noted that the same order treats the capture of a person’s phone number from an incoming phone call differently. The order says that “if a caller’s number is ‘captured’ by a Caller ID or ANI device, the caller cannot be considered to have given an invitation or permission” to be called at the captured number.

Wesley had alleged in his TCPA lawsuit that the two text messages he had sent did not contain his phone number. Therefore the judge inferred that Wesley had not knowingly released his number but instead that it had been captured. Therefore he had adequately stated a TCPA claim – at least regarding those two text messages.

As for the first text spam message, Judge Proctor said he could not tell based solely on the pleadings in the case whether the message on the scoreboard indicated whether Coca-Cola was identified as the sponsor (though in a footnote, the judge anticipated further discovery would yield evidence that would resolve that question). Therefore, the judge determined Wesley had stated a plausible claim under TCPA section 227(c).

Ultimately, however, the judge determined that by the time of the second text message, Wesley was on notice that he was communicating with Coke Zero, putting him in an “established business relationship” that nullified his claim under section 227(c) of the TCPA.

Judge Proctor’s decision on the defendants’ motion to dismiss was issued in January 2015. No further decisions have been issued in this case since then.

The Coca-Cola Text Spam Class Action Lawsuit is Case No. 2:12-cv-04033 in the U.S. District Court for the Northern District of Alabama.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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