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Judge Grants Summary Judgment in Favor of Defendant in TCPA Texting Case

Selfishly, I will admit that I originally wanted to write about this case only because it gave me the opportunity to mention the name of the defendant — La Boom Disco. But, having read a ruling from Judge Allyne Ross of the District Court for the Eastern District of New York, it became clear that there was more to the ruling than just the funky name of the company being accused of violating the Telephone Consumer Protection Act.

A copy of the ruling in Duran v. La Boom Disco, Inc., can be accessed by clicking here.

Judge Ross sua sponte granted summary judgment in favor of the defendant after it was accused of violating the TCPA by sending more than 100 text messages to the plaintiff after he had texted a code in order to receive free entry to the nightclub. The defendant continued to send messages during the next couple of years, some of which included instructions about how to opt out of receiving future offers. But the plaintiff never opted out.

The case did not look to be heading in the defendant’s direction originally, when Judge Ross ruled that the defendant should have obtained prior expressed written consent when sending the messages, but the issue turned in its favor when the judge looked at what defines an automatic telephone dialing system.

The platforms used by the defendant to send the text messages do not meet the definition of an ATDS, Judge Ross ruled, because a human must decide at what time the messages are to be sent.

“In sum, because a user determines the time at which the [the texting] programs send messages to recipients, they operate with too much human involvement to meet the definition of an autodialer,” Judge Ross wrote in her ruling.

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