Trim v. Mayvenn, Inc.

Background

Lucine Trim alleged that her cellphone number had been listed on the National Do Not Call Registry since December 3, 2019. She alleged that Mayvenn sent her two marketing text messages, one on April 24, 2020, and another on May 4, 2020. Trim alleged that she had never provided prior express written consent to receive the messages and that they invaded her privacy, wasted her time, annoyed and harassed her, and used her phone’s battery and memory.

Trim asserted a claim under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, on behalf of herself and a proposed class. The opinion also notes that she had asserted a second TCPA claim but voluntarily dismissed it.

Mayvenn’s Motion

Mayvenn moved for summary judgment under Federal Rule of Civil Procedure 56. Summary judgment is available when there is no genuine dispute over a fact that could affect the outcome and the moving party is entitled to judgment under the law. Mayvenn argued that Trim’s claim failed for three reasons: Trim’s interests were outside the TCPA’s protected zone of interests; Mayvenn had an established business relationship with Trim; and Trim’s cellphone number was a business number not protected by the TCPA’s do-not-call rules.

Standing and the TCPA’s Protected Interests

Mayvenn argued that Trim was a “professional TCPA plaintiff” who filed lawsuits to generate revenue and therefore lacked standing. The court explained that the “zone of interests” question concerns whether the statute protects a particular plaintiff’s claim, rather than Article III standing.

The court recognized that the TCPA was intended to protect consumers from unwanted calls and messages. Although some courts had denied protection to plaintiffs who obtained phones specifically to receive calls and file TCPA lawsuits, the court found no evidence that Trim sought or attracted telemarketing messages or that her other TCPA cases were frivolous. The court also noted evidence that Trim had used the same personal cellphone number for more than ten years. It rejected Mayvenn’s argument that Trim’s failure to complain or reply “STOP” to the first message deprived her of protection, explaining that the TCPA did not impose a duty to mitigate statutory damages in these circumstances.

The court therefore held that Mayvenn had not shown an entitlement to summary judgment on this ground.

Established Business Relationship

The TCPA’s do-not-call rules contain an exception for calls to a person with whom the caller has an established business relationship. The applicable regulation defines that relationship in part as a recent relationship formed through voluntary two-way communication based on the subscriber’s inquiry or application about the entity’s products or services.

Mayvenn argued that Trim created such a relationship by entering a Mayvenn sweepstakes. Trim argued that a sweepstakes entry should not create an established business relationship, relying on the Federal Trade Commission’s interpretation of a similar exception under the Telemarketing Sales Rule. The court found Trim’s argument persuasive. It reasoned that Congress directed the Federal Communications Commission and the Federal Trade Commission to maximize consistency between the two sets of do-not-call rules, and that the Federal Communications Commission modeled its exception on the Federal Trade Commission’s rule.

The court held that Mayvenn could not use Trim’s sweepstakes entry to circumvent the National Do Not Call Registry by exploiting the established-business-relationship exception. It therefore found that Mayvenn was not entitled to summary judgment on this ground.

Business Subscriber

The court explained that the National Do Not Call Registry applies to residential subscribers and does not generally prevent calls to businesses. Wireless subscribers who place their numbers on the Registry are presumed to be residential subscribers, although that presumption can be rebutted.

Mayvenn argued that Trim’s number was not protected because she used it as a business number. The court found a genuine dispute of material fact. Mayvenn presented evidence that Trim used the number to make sales calls to prospective customers of her employer. But other evidence showed that she used a separate, employer-provided number for customer-service calls, had used the disputed number as her only personal number for more than ten years, subscribed to it in her own name, and paid its bill herself. The court concluded that a reasonable jury could find that Mayvenn’s texts were sent to a residential subscriber.

Disposition

The court denied Mayvenn’s motion for summary judgment. It also vacated the hearing scheduled for April 8, 2022, deciding the motion based on the parties’ written submissions. The order was signed by United States District Judge Maxine M. Chesney on April 5, 2022.