Appeals Court Rules Sending Text Messages Confers Consent to be Contacted

The Court of Appeals for the Ninth Circuit has affirmed a lower court’s ruling that an individual’s text messages sent to a financial institution constitute providing expressed consent to be contacted on a mobile phone via an automated telephone dialing system under the Telephone Consumer Protection Act, but that the lower court abused its discretion in determining that attorney’s fees meet the definition of “costs.”

A copy of the ruling in the case of Moskowitz v. American Savings Bank can be accessed by clicking here.

The plaintiff sent 11 text messages to a short code number maintained by the defendant. Ten of the messages were unrelated to the bank or its services and each of those were replied to with a standard non-customer message offering instructions on how to stop receiving text messages and how to contact the bank via phone. The 11th text message sent by the plaintiff was nothing more than “stop” to which the defendant responded with another standard message, informing the individual that he or she is not subscribed to receive alerts from the bank.

The plaintiff then filed suit, alleging the defendant violated the TCPA by replying to his text messages using an automatic call-generating capabilities without first obtaining the plaintiff’s consent. A District Court judge granted the defendant’s motion for summary judgment, ruling that each of the texts sent to the defendant by the plaintiff constituted prior express consent, while also awarding attorney’s fees to the defendant.

The panel of Ninth Circuit judges made short work of the plaintiff’s argument that his text messages did not constitute consent to be contacted, holding that the lower court’s application of binding precedent was not an error and that by sending texts to the defendant’s short code, the plaintiff “expressly consented to receive reply text messages.”

With respect to the awarding of attorney’s fees, the panel viewed the lower court’s ruling differently. The definition of “costs” as far as the legal system is concerned, does not include attorney’s fees, the Ninth Circuit ruled. “In so holding, we join every published circuit court opinion that has meaningfully considered this issue,” the panel wrote.

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