Recreational Marijuana Dispensary Must Face TCPA Class Action, Plaintiffs Say

Plaintiffs in a TCPA class action recently argued that a recreational marijuana dispensary can’t dodge the suit based on Canadian laws.

Baker Technologies Inc., along with parent company Tilt Holdings Inc., argued that the claims against them should be dismissed because Canadian law applies to their case. Tilt was reportedly incorporated in Canada, which they say gets them out of the TCPA (Telephone Consumer Protection Act) lawsuit.

Plaintiffs Richard Komaiko and Marcie Cooperman argued against the company in a recent filing, alleging that the court should not consider the dispensary’s argument based on a technicality. According to the consumers, the recreational marijuana dispensary did not pose their argument in their original motion for dismissal. Instead, the companies reportedly brought up the issue in a reply.

“Because this line of argument concerning application of Canadian law was first raised in the reply, it should be stricken and the court should not consider it in ruling on defendants’ motion to dismiss,” the filing states.

The plaintiffs go on to state that, even if the court does consider applying Canadian law which does not recognize the theory of successor liability, Tilt should still be held liable under Massachusetts law. According to the plaintiffs, Tilt’s primary place of business is Massachusetts so that is where they should be held liable.

“Even if the court were to determine Tilt’s potential liability employing British Columbia law, defendants have not shown that law requires dismissing Tilt based on the unavailability of successor liability theories,” the plaintiffs argued.

“Canadian cases have recognized successor liability as a viable theory, and have declined to dismiss cases at the pleadings stage where successor liability has been asserted.”

Recreational Marijuana Dispensary TCPA Allegations

Komaiko and Cooperman brought their claims against Baker and Tilt in June 2019. The consumers claim that they received dozens of unsolicited text messages from marijuana dispensaries in California, Colorado, and Washington. These texts were allegedly sent using a program from Baker Technologies.

The plaintiffs argue that these texts were unsolicited and therefore in violation of the Telephone Consumer Protection Act (TCPA). TCPA is a federal law which prevents businesses from placing telemarketing calls or texts without prior express written consent. Even if a company has an “established business relationship” with consumers, they still must obtain consent before contacting their customers with telemarketing messages.

Plaintiffs in the marijuana dispensary TCPA class action seek to represent a Class of consumers who received unsolicited text messages through Baker’s programs. There are reportedly over 1,000 dispensaries across 27 states which use the software, meaning that there could be hundreds of Class Members.

If companies violate the TCPA, they may be ordered to pay up to $1,500 per call or text they placed. Statutory damages up to $500 are available for negligent violations while damages up to $1,500 are available for willful violations.

The Recreational Marijuana Dispensary TCPA Class Action Lawsuit is Komaiko, et al. v. Baker Technologies Inc., et al., Case No. 4:19-cv-03795, in the U.S. District Court for the Northern District of California.

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This article is not legal advice. It is presented
for informational purposes only.