Dawson v. Porch.com Inc

Background

The plaintiffs are 993 individuals who alleged that GoSmith, Inc. sent them unsolicited marketing text messages using automated technology. The messages offered to connect recipients with homeowners seeking projects or work in exchange for a fee. The plaintiffs alleged that they did not provide their phone numbers to the defendants and did not consent to the messages. Some plaintiffs allegedly received more than 1,000 messages.

The plaintiffs asserted four causes of action: violations involving the national Do Not Call Registry; violations of federal minimum telemarketing standards; use of an automatic telephone dialing system; and violations of Washington’s Commercial Electronic Message Act. They sought statutory damages, injunctive relief, and other relief. They alleged that Darwin Widjaja, Brenton Marrelli, and Matthew Ehrlichman were personally liable, and that Porch.com was liable under theories including agency, alter ego, and vicarious liability.

Rule 12(b)(6) dismissal issues

A motion under Rule 12(b)(6) tests whether the complaint alleges enough facts to make a claim plausible. Applying that standard, the court held that the national Do Not Call Registry claim was adequately pleaded. The court concluded that the Registry’s protections applied to text messages sent before a March 2024 regulatory amendment because the amendment clarified existing protections rather than creating a new prohibition. The court also held that the allegations sufficiently identified the messages as telephone solicitations, identified GoSmith as the sender, and plausibly alleged residential use of the phone numbers.

The court allowed the federal minimum-telemarketing-standards claim to proceed for the 947 plaintiffs asserting it. The court held that text messages qualify as “calls” under the applicable regulation and that the allegations plausibly supported a violation involving messages that did not identify the sender. The court also held that the regulation’s seller-identification requirement provides a private right of action and that a recipient need not first request that the sender stop contacting them.

For claims based on ignoring a stop request, the court found that some plaintiffs alleged enough facts to proceed, while seven identified plaintiffs—Keith Johnson, Robert Jones, Stephen Richardson, Reese Robinson, Mark Anthony Rodriguez, Artem Rudyy, and Brandon Weichers—needed additional details about their stop requests and later messages. The court granted leave to amend those allegations.

Automatic telephone dialing system claim

The plaintiffs alleged that defendants scraped phone numbers from third-party websites and used those stored numbers to send automated text messages. The court held that these allegations did not plausibly show use of an automatic telephone dialing system under the federal Telephone Consumer Protection Act. Relying on Supreme Court and Ninth Circuit precedent, the court explained that the equipment must randomly or sequentially generate the telephone numbers themselves; storing and automatically dialing existing numbers is not enough. The court therefore found that the plaintiffs had failed to adequately allege this claim.

Washington Commercial Electronic Message Act claim

The court held that the Washington Commercial Electronic Message Act permits injunctive relief but does not itself permit recovery of damages. Damages based on an alleged violation could instead be pursued under Washington’s Consumer Protection Act. The court also found that the existing allegations did not plausibly show an ongoing violation supporting an injunction. It allowed plaintiffs to amend the fourth cause of action to assert a Consumer Protection Act damages claim based on the alleged violations. The court rejected defendants’ argument that the messages were not commercial, finding that they promoted defendants’ lead-generation services.

Individual and corporate liability

The court rejected plaintiffs’ argument that Marrelli and Widjaja had waived their objections to personal jurisdiction. Because plaintiffs did not oppose severing and transferring those claims, the court severed the claims against Marrelli and Widjaja and transferred them to the Northern District of California.

The court allowed the claims against Ehrlichman to proceed. Although holding a corporate position alone would not establish personal liability, the allegations that Ehrlichman built, authorized, directed, and participated in the messaging system plausibly suggested personal involvement. The court also held that the allegations plausibly supported liability for Porch.com, including allegations that it integrated GoSmith’s system, provided resources, supplied leads, continued the business practices, and received GoSmith’s customer information and assets.

Disposition

The order states that defendants’ motion to dismiss was GRANTED in part and DENIED in part. The court also states that plaintiffs’ motion to amend was GRANTED in part and DENIED in party; “DENIED in party” appears to be a typographical error in the order. The court directed that the 37 plaintiffs who asserted only the automatic-dialing claim be terminated from the case because that claim was dismissed without leave to amend. The court directed plaintiffs to file a Third Amended Complaint within 21 days if they intended to do so. The claims against Marrelli and Widjaja were transferred to the Northern District of California.