Facebook Can’t Escape ‘Birthday Text’ Class Action Lawsuit

A class action alleging Facebook violated the Telephone Consumer Protection Act by sending reminders to users about their friends’ birthdays will be allowed to continue, following an order by a California federal judge.

Lead plaintiff Colin Brickman said he received unwanted text messages from Facebook reminding him of his Facebook friends’ birthdays in violation of the telemarketing law.

Facebook argued that the class action should be dismissed because the plaintiff did not established that the messages were sent using an autodialer as required under the statute.

U.S District Court Judge Thelton Henderson disagreed with Facebook, noting that Brickman demonstrated that Facebook used a software system that sent out information without human intervention and, viewed in a light most favorable to the plaintiff, could establish his claims under the TCPA.

“While Facebook’s birthday announcement texts do suggest direct targeting of Brickman, based on the facts alleged, it is plausible that Facebook could have used an ATDS to send out the targeted messages,” wrote the judge in his order. “This is especially true in a situation like this where Brickman alleged Facebook possessed the particular information and technology needed to craft such targeted messages (i.e., cell phone numbers, users’ birthday, friendship connections, etc.).”

Facebook also argued that the plaintiff consented to the text reminders by signing up Facebook and then linking his phone number to his profile; however, the judge rejected this argument.

“The court finds that Brickman’s and [his friend’s] actions were not the impetus for Facebook sending the birthday announcement text,” wrote the judge in his order. “This is particularly true where Brickman alleges he gave Facebook his cellphone number but that his account settings gave Facebook ‘unambiguous notice’ that it did not have consent to send him text messages.”

Judge Henderson did not take up Facebook’s argument that the plaintiff consented to the birthday text messages pointing out that in evaluating a motion to dismiss “the court must accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.”

“Accordingly, while the issue may be disputed at a later time, the court shall accept as true Brickman’s allegations that he did not provide consent to receive text messages from Facebook,” concluded the judge.

Facebook also argued that the TCPA violates its First Amendment rights under the U.S. Constitution because there are hypothetically less restrictive means for the government to promote residential privacy.

The judge rejected this argument, noting that no less restrictive means for protecting residents’ privacy were not provided by Facebook. Additionally, the judge pointed out that the TCPA does not prohibit individuals from receiving calls that they want by providing consent.

“If individuals want to receive speech from Facebook that facilitates social connections, they are not prohibited from doing so,” said the judge.

Brickman is represented by Patrick J. Perotti and Frank A. Bartela of Dworken & Bernstein Co. LPA, and Kristen Law Sagafi, Martin D. Quinones and Hassan A. Zavareei of Tycko & Zavareei LLP.

The Facebook Birthday Text Class Action Lawsuit is Colin R. Brickman v. Facebook Inc., Case No. 3:16-cv-00751, in the U.S. District Court for the Northern District of California.

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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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