Rogers v. Postmates Inc.

Background

Richard Rogers brought a proposed class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227. He alleged that Bird Dog Media, LLC sent an automated text message to his cellular telephone on April 8, 2019. The message promoted Postmates delivery-driver opportunities and included a hyperlink that directed recipients to a webpage on Postmates’ website.

Rogers alleged that Postmates had contracted with Bird Dog to promote its application and driver opportunities, that Bird Dog sent the messages on Postmates’ behalf, and that Postmates monitored and benefited from the marketing campaign. He alleged that neither he nor the proposed class members had given express consent to receive the messages. Rogers asserted one TCPA claim and sought to represent a nationwide class of people who received similar messages.

Postmates moved to dismiss the second amended complaint under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim. Postmates did not dispute that the text message could violate the TCPA. Its motion argued that Rogers had not adequately alleged that Postmates was legally responsible for a message sent by Bird Dog.

Court’s Analysis

The court explained that a defendant may be held responsible for a third party’s TCPA violation through vicarious liability if the plaintiff plausibly alleges an agency relationship. Agency generally requires that the principal authorize the agent to act on its behalf and have the right to control the agent’s actions. The court considered three theories of agency: actual authority, apparent authority, and ratification.

Actual authority. The court held that Rogers did not plausibly allege that Postmates controlled Bird Dog or controlled the manner and means of sending the text. Although Rogers alleged that Postmates contracted with Bird Dog, monitored the campaign’s results, and benefited from it, he did not allege that Postmates directed Bird Dog to send text messages, dictated their content, controlled the recipients or timing, supplied necessary technology or information, or otherwise directed the campaign’s execution. A beneficial contract, without allegations of control, was insufficient to establish agency.

Apparent authority. Apparent authority arises when the principal makes statements or takes actions that reasonably cause a third party to believe that the alleged agent is authorized to act. Rogers relied on the references to Postmates in the text and the link to a Postmates webpage. The court found those allegations insufficient because Rogers did not plausibly allege that he relied on any representation by Postmates about Bird Dog’s authority. The court also rejected the argument that the URL’s campaign parameters showed that Bird Dog had access to Postmates’ private information or systems. The destination page was publicly available, and the parameters could have been added by Bird Dog without special access.

Ratification. Ratification occurs when a principal later affirms another person’s act, making it effective as though an authorized agent had performed it. The court held that Rogers did not plausibly allege ratification. He alleged that Postmates knew or should have known that Bird Dog was sending texts and that Postmates benefited from the campaign, but he did not allege that Postmates knew Bird Dog was sending messages in violation of the TCPA or knew that recipients had not consented. He also alleged no warning signs that would have required Postmates to investigate whether Bird Dog was breaking the law.

Leave to Amend and Disposition

The court denied further leave to amend. Rogers had made three attempts before the court to plausibly plead that Postmates, rather than another party, was responsible for the alleged TCPA violation. The court had previously explained that he needed to allege Postmates exercised some control over who sent the text and over the manner and means of sending it. Because Rogers still had not alleged those facts, the court concluded that further amendment would be futile.

The court granted Postmates’ motion to dismiss. It dismissed the second amended complaint with prejudice.