Risher v. Adecco Inc.

Background

Clarence Risher brought a proposed class action against Adecco Inc. and Mya Systems, Inc. He alleged that the defendants violated the Telephone Consumer Protection Act (TCPA), a federal statute regulating certain telephone calls and text messages, by sending two text messages to his cell phone soliciting him for possible employment through Adecco’s job-placement service.

Risher had already amended his complaint three times. He sought permission to file a Fourth Amended Complaint. The defendants opposed the request, arguing undue delay, futility, and a lack of good cause to change the scheduling order.

Court’s Analysis

The court explained that the scheduling-order deadline applied to amendments made without seeking the court’s permission. Because that deadline had passed, Federal Rule of Civil Procedure 15 governed. Rule 15 generally directs courts to freely allow amendments when justice requires.

Risher proposed wording changes to his existing TCPA claim. The court observed that the claim appeared to be undermined by the Supreme Court’s decision in Facebook, Inc. v. Duguid and that similar theories had been rejected in other cases in the district. But the court declined to deny the amendment as futile. Doing so would leave the existing complaint in place and require the defendants to bring a separate motion for judgment on the pleadings or summary judgment. Allowing the amendment instead gave the defendants an opportunity to seek dismissal of the claim if they chose.

Risher also sought to revise the proposed class definitions. He wanted to treat a previously proposed “do not call” subclass as a separate class and remove certain time limits from the class definitions. The court found no undue prejudice and concluded that the proposed changes were not inherently improper, futile, or unduly prejudicial.

Finally, Risher sought to add a new TCPA claim based on the statute’s restrictions on the use of an “artificial voice” or prerecorded messages. He argued that this theory applied to the way the chatbot operated. The court said the theory might ultimately fail as an unsupported application of the statutory language, but it was premature to reject it as futile at the amendment stage. The court also concluded that any delay had not caused undue prejudice given the status of the litigation.

Ruling and Effect

The court granted Risher’s motion for leave to amend. It ordered him to file the Fourth Amended Complaint in the form proposed with the motion. The defendants were ordered to file responsive pleadings within 30 days after that filing.

The order permitted the amended pleading but did not decide whether Risher’s TCPA claims would succeed. Judge Richard Seeborg signed the order on September 17, 2021.