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Reichman v. Poshmark, Inc.

United States District Court, S.D. California

May 15, 2017

CHRISTOPHER J. REICHMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiffs,
POSHMARK, INC., a Delaware Corporation, Defendant.


          Hon. Dana M. Sabraw United States District Judge

         This case comes before the Court on Defendant Poshmark, Inc.'s motion for early summary judgment pursuant to Federal Rule of Civil Procedure 56. The motion came on for hearing on May 5, 2017. David C. Beavans appeared for Plaintiff, and Laura Alexandra Stoll appeared for Defendant. After considering the parties' briefs, oral argument, the relevant legal authority, and the record, Defendant's motion is granted.

         I. BACKGROUND

         This lawsuit arises out of Plaintiff Christopher J. Reichman's receipt of two text messages containing an invitation to register with Poshmark. Defendant Psohmark operates a mobile application (“app”) that provides users with a platform to sell and purchase used clothing and accessories. (First Amended Complaint (“FAC”) ¶¶ 7-9.) Users can use the app to list their goods for sale by creating an online “closet” and uploading pictures of the items from their mobile devices. (Id. ¶¶ 7, 10-11.) Users can also purchase goods from other users' closets on their mobile devices by using the app. (Id.) Like many other apps, Defendant's app allows users to invite their “contacts” to join Poshmark by text message or other means.[1]

         Plaintiff's former client, Tricia Tolentino, is a registered user on Poshmark, with over 14, 000 users “following” her closet. (Declaration of John McDonald (“McDonald Decl.”) ¶¶ 20, 28.) On January 18, 2015, Ms. Tolentino accessed the app and listed several clothing items for sale. (Id. ¶ 21.) Afterwards, she navigated to the “Find People” page, which provided her with three options to find her contacts: (1) from her contact list stored on her mobile device, (2) from her Facebook account, and (3) from her Twitter account. (Id. ¶¶ 8, 22.) Ms. Tolentino selected the first option.[2] (Id. ¶ 22.) She was then brought to a screen displaying a list of her contacts, including those who have yet to register with Poshmark. (Id. ¶¶ 14, 22.) Displayed below each of those contact's name was his or her phone number or e-mail address.[3] (Id. ¶ 14.) On this screen, Ms. Tolentino was provided with two options to invite her contacts to join Poshmark: (1) selecting the “Invite All” button to send an invite to everyone in her contact list, or (2) individually selecting an invitation button next to each contact's name. (Id. ¶ 15.) Ms. Tolentino chose to send an invitation to all of her contacts by selecting the “Invite All” button. (Id. ¶¶ 15, 22.) As a result, invitational messages were sent to the invitees according to the contact method displayed under their names.[4] (Id. ¶¶ 16, 22.) Because Ms. Tolentino had saved Plaintiff's phone number in her contact list, Plaintiff received a text message, which contained an invitation “to view and buy the wares now being sold through POSHMARK” and a link to Ms. Tolentino's closet.[5] (FAC ¶ 14; Declaration of Christopher J. Reichman (“Reichman Decl.”) ¶ 3.) On January 25, 2015, Ms. Tolentino again access the app and selected the “Invite All” button, which caused Plaintiff to receive another text message. (Reichman Decl. ¶ 5.)

         Based on the receipt of two text messages, Plaintiff alleges Defendant violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1)(A)(iii). Plaintiff seeks to represent a class of “[a]ll persons and entities located within the United States of America to whose mobile phones POSHMARK and/or its agents transmitted a text message without prior express written consent anytime from September 15, 2012, to the present.” (FAC ¶¶ 6, 36.) Defendant now moves for summary judgment, arguing Plaintiff cannot establish a violation of § 227(b)(1)(A)(iii) because Defendant did not “make” the invitational text message.


         A. Legal Standard

         Summary judgment is appropriate if “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it “believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth.” S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

         The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id.; see also Butler v. San Diego Dist. Attorney's Office, 370 F.3d 956, 958 (9th Cir. 2004) (stating if defendant produces enough evidence to require plaintiff to go beyond pleadings, plaintiff must counter by producing evidence of his own). More than a “metaphysical doubt” is required to establish a genuine issue of material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         B. TCPA Claim

         Defendant contends it cannot be liable under the TCPA because Plaintiff cannot establish it made the calls, i.e., that Defendant sent the challenged text messages. The TCPA makes it unlawful “to make any call (other than a call ... made with the prior express consent of the called party) using any automatic telephone dialing system ... to any telephone number assigned to a ... cellular telephone service[.]” 47 U.S.C. § 227(b)(1)(A)(iii). A text message is a “call” within the meaning of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009). The TCPA, however, does not define the term “to make any call[.]” Congress has delegated to the Federal Communications Commission (“FCC”) the authority to make rules and regulations to implement the TCPA. Satterfield, 569 F.3d at 953 (citing 47 U.S.C. § 227(b)(2)). Pursuant to this authority, the FCC issued a Declaratory Ruling and Order, providing guidance for determining who makes or initiates a call, in light of the “changes in calling technology.” See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7978-84 (2015) (“FCC Order”). In determining whether an app or its user is the maker of a call, the FCC explained that it looks to “the totality of the facts and circumstances surrounding the placing of a particular call to determine: 1) who took the steps necessary to physically place the call; and 2) whether another person or entity was so involved in placing the call as to be deemed to have initiated it, considering the goals and purposes of the TCPA.” Id. at 7980. Because the TCPA does not define the term “to make any call” and the FCC's interpretation of the TCPA is reasonable, the Court uses the FCC Order to inform its analysis. See Satterfield, 569 F.3d at 953; see also Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1048 (9th Cir. 2017) (finding reasonable the FCC's interpretation of the TCPA in the 2015 FCC Order).

         Of particular relevance to this case, the FCC determined whether two app providers, Glide and TextMe, “make” calls for purposes of the TCPA. The FCC used Glide to illustrate when an app provider is a maker of a call. Glide was a video messaging service that automatically sent “invitational texts of its own choosing to every contact in the app user's contact list” unless the user affirmatively opted out. FCC Order at 7982-83. The FCC found “the app user plays no discernible role in deciding whether to send the invitational text messages, to whom to send them, or what to say in them.” Id. at 7983. Given these facts, the FCC concluded “Glide makes or initiates the invitational text messages by taking the steps physically necessary to send each invitational text message or, at a minimum, is so involved in doing so as to be deemed to have made or initiated them.” Id.

         In contrast, the FCC reached the opposite conclusion with TextMe. Unlike Glide, users had to take several affirmative steps for TextMe to send invitational text messages. Users had to “(1) tap a button that reads ‘invite your friends'; (2) choose whether to ‘invite all their friends or [] individually select contacts'; and (3) choose to send the invitational text message by selecting another button.” FCC Order at 7983-84. Although the FCC expressed concern that TextMe controlled the content of the messages, the affirmative choices by users led the FCC to conclude the user, not TextMe, was the maker of the text message. Id. at 7984. The FCC reasoned “the app user's ...

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