Court dismisses suit alleging attempt to win concert tickets triggered unwanted marketing texts

By Charmaine Little | May 21, 2018

NEW ORLEANS – A Louisiana woman’s attempt to win concert tickets that turned into a case involving the Telephone Consumer Protection Act (TCPA) was dismissed in U.S. District Court in the Eastern District of Louisiana according to May 8 opinion.

NEW ORLEANS – A Louisiana woman’s attempt to win free concert tickets that turned into a case involving the Telephone Consumer Protection Act (TCPA) was dismissed in U.S. District Court in the Eastern District of Louisiana according to May 8 opinion.

U.S. District Judge Sarah Vance ruled in favor of defendant Marketron Broadcast Solutions Inc. (Marketron) to dismiss plaintiff Renee Reese’s suit due to lack of standing and failure to state a claim. The court also denied Reese's motion to remand the case to state court.

Reese filed a putative class-action lawsuit against Marketron claiming it violated the TCPA by making illegal to calls to a consumer with an automatic telephone dialing system without their permission. Text messages also apply to the regulation.

Reese's suit alleged the company sent her text messages after she texted an automated number in hopes of winning tickets to see recording artist Tinashe. Marketron allegedly replied to Reese’s initial text with an automated message that informed her she was entered and provided a link for her to purchase tickets. She replied to the message “to join” with “Y” for Yes, to receive more text messages.

Reese explained to the court she suffered many injuries from Marketron’s additional text messages she received over a period of time. She said her injuries consisted of “time spent answering and fielding unwanted telemarketing text messages, charges for receiving the messages, wear and tear on her telephone and loss of battery life.”

The court denied her motion to remand the case to state court and pointed out Marketron acted correctly in moving the case to federal court as the TCPA is a federal matter.

As for Marketron’s claims, the court determined Reese had proper standing in her case despite Marketron’s argument that she did not provide “concrete invasion of a legally protected interest,” according to the opinion. While Marketron pointed out Reese agreed to receive the messages, the court agreed with the injuries Reese said she experienced as a result.

Still, the court granted Marketron’s motion to dismiss amid Reese’s failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Reese had stated Marketron’s initial text message was a violation of the TCPA because it had advertising via the link included in the text.

The court determined the link was not advertising or telemarketing because Reese invited and consented to the initial text when we she sent her first message. It also pointed out the link only referenced a concert Reese was already aware of.

The court also did not agree with Reese’s second argument, that Marketron’s messages did not include opt-out instructions. The court pointed out Reese didn’t receive any unwanted phone calls with an automated voice. Therefore, the opt-out argument did not apply to Marketron’s messages. Considering this, the court agreed with Marketron that Reese was unable to state a TCPA claim under this notion.

The court denied Reese's request to remand the case back to state court and granted Marketron’s request to dismiss under Rule 12(b)6).

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