TCPA Class Action Over Car Dealer’s Texts Will Go To Trial

Compass Bank Can’t Use Spokeo To Ditch TCPA Row
November 26, 2017

Law360, Miami (May 23, 2018, 11:24 PM EDT) — A class action against used-car dealer Off Lease Only Inc. for allegedly sending unsolicited text messages in violation of the Telephone Consumer Protection Act will head to a jury as a Florida federal judge found Wednesday that too many factual disputes remain for her to decide the case.

U.S. District Judge Marcia G. Cooke denied Off Lease a quick escape, describing questions about its relationship to the company that sent the texts in its name and whether it was vicariously liable as “factually intensive” and best left to a jury.

She partially granted the class’ motion for summary judgment on its assertion that language lead plaintiff Ray Mohamed included in the Craigslist car sales ad that was the source of his phone number saying he did not want to receive texts or solicitation is a revocation of consent, but she said the jury should decide whether the disputed texts served as telemarketing and whether the dialing system used qualifies as an autodialing telephone system for the purposes of the TCPA.

Counsel for both sides declined to comment after the hearing, saying they want to see Judge Cooke’s full written order first, although class counsel indicated they were pleased that they will get to try their case.

Mohamed’s 2015 suit alleged that Off Lease, through its agent American Motor Co. LLC — which operates as InstantCarOffer — sent him unsolicited marketing texts in response to a Craigslist advertisement he posted about selling his car, even though his ad explicitly stated, “Do NOT contact me with unsolicited services or offers.”

InstantCarOffer, using lead-generating software and data scraped from the ad by another company, Liberty Metrics, texted Mohamed several times with an autodialer, saying, “We are cash buyers for local vehicles. Get a cash offer 24/7 … Off Lease Only Miami,” he claimed.

Mohamed also alleged that the messages were not simply offers to buy his and other potential class members’ vehicles, but a telemarketing effort to draw them in as potential customers for a trade-in or purchase of one of Off Lease’s vehicles, which he alleges took place at least 17 times.

The alleged “dual purpose” of the texts is a potentially significant distinction, because if the texts are found to constitute telemarketing, then express written consent — not just prior express consent — of the recipient is needed, under a 2012 Federal Communications Commission ruling.

Judge Cooke certified a class last July consisting of anyone in the United States who received a text message from InstantCarOffer on behalf of Off Lease sent through the Twilio platform after they placed an ad on Craigslist to sell a vehicle. The class period covers the four years prior to the filing of the suit in September 2015 through the class certification date.

A magistrate judge who heard arguments on class certification questioned whether the limiting language against receiving text messages that appeared in some of Mohamed’s ads raised issues of typicality in how broadly the class should be defined, but Judge Cooke did not cite that as a narrowing factor in her order.

In its bid for summary judgment, Off Lease argued that the class’ claims fail because it did not send any of the text messages and did not have an “agency relationship” with InstantCarOffer, which Mohamed released in a settlement in exchange for its cooperation in discovery.

“We don’t control the means or the methods [of InstantCarOffer] in a single way,” Off Lease counsel Franklin L. Zemel of Arnstein & Lehr LLP argued Wednesday.

Zemel suggested it was more accurate to say that InstantCarOffer had hired Off Lease to provide dealer services it could not provide itself to consummate sales with consumers.

Pressed by Judge Cooke whether Off Lease was aware of the methods being employed, he argued the evidence on record does not show that the company approved the use of its name in the text messages or that it received messages about at least one consumer’s complaints regarding the texts. A individual who has been described in the case as Off Lease’s marketing director was an independent contractor and not a company employee, he said.

Arguing for the class, Seth Lehrman of Edwards Pottinger LLC countered that evidence that Off Lease was given access to InstantCarOffer’s “back-end tool,” through which it could independently contact consumers, shows agency and ratification of InstantCarOffer’s actions.

Lehrman said it was immaterial if Off Lease ever actually used that access to contact a consumer and argued that Off Lease definitely knew before it even signed its contract to serve as a dealer for InstantCarOffer that the texts would be sent.

Off Lease counsel Alan R. Poppe of Arnstein & Lehr also argued that it would be unfair to hold the company liable for TCPA violations when no one is sure what constitutes an autodialing telephone system, noting that the FCC earlier this month issued a request for comments on the issue.

Before ruling that a jury should consider those facts, Judge Cooke questioned how, given such uncertainty, it would be appropriate for her to grant summary judgment on the issue “as a lowly trial judge.”

Mohamed is represented by Bret L. Lusskin of Bret Lusskin PA, Seth Lehrman of Edwards Pottinger LLC, Scott D. Owens and Sean M. Holas of Scott D. Owens PA, and Manuel S. Hiraldo of Hiraldo PA.

Off Lease is represented by Franklin L. Zemel and Alan R. Poppe of Arnstein & Lehr LLP and in-house counsel Ejola Cook and Rebecca Radosevich.

The case is Mohamed v. Off Lease Only Inc., case number 1:15-cv-23352, in the U.S. District Court for the Southern District of Florida.