Pederson v. Donald J. Trump for President, Inc.

Background

Dan Pederson, Connor Olson, and Shell Wheeler brought proposed class-action claims under the Telephone Consumer Protection Act (TCPA), alleging that Donald J. Trump for President, Inc. sent them unsolicited text messages using automated telephone equipment. The messages included invitations to a Trump campaign rally, an invitation to receive messages from the Campaign, and a request to contact Representative Craig in support of President Trump. The plaintiffs alleged that they were not affiliated with the Campaign and had not consented to receive the messages.

The Campaign moved under Federal Rule of Civil Procedure 12(b)(1), arguing that the plaintiffs lacked standing because they had not alleged a sufficient injury or a connection between the messages and the Campaign. It also moved under Rule 12(b)(6), arguing that the complaint did not adequately allege use of an automatic telephone dialing system. In addition, the Campaign moved under the Federal Arbitration Act to compel arbitration of Pederson’s claims, or to dismiss or stay those claims, based on its contention that Pederson had signed up for campaign updates, consented to the texts, and accepted an arbitration agreement.

Standing

The court held that the plaintiffs adequately alleged an injury for standing purposes. It concluded that an unsolicited text message can present a level of disturbance and privacy invasion equivalent to that of an unsolicited call, voicemail, or fax, and therefore can qualify as a legally recognized injury under the TCPA.

The court also held that the plaintiffs plausibly alleged that the text messages were traceable to the Campaign. The Campaign conceded that three messages were fairly traceable to it but disputed the connection between the Campaign and a message sent to Pederson from an unknown number. The court found it plausible that this message was connected to the Campaign because Pederson had received another unsolicited message from an unknown number only days earlier that the Campaign conceded was traceable to it. At the motion-to-dismiss stage, the court accepted the plaintiffs’ allegations as true.

TCPA Claim

The court held that the plaintiffs sufficiently alleged use of an automatic telephone dialing system. They alleged that the Campaign used peer-to-peer text messaging to send generic messages to uploaded lists of cellular numbers, that the messages came from numbers that produced error messages or disconnected tones when called, and that the messages did not address recipients individually.

The court also rejected the Campaign’s argument that software using an uploaded list of phone numbers cannot be an automatic telephone dialing system. The court found the reasoning of the Second and Ninth Circuits more persuasive than the contrary approach cited by the Campaign and concluded that the TCPA does not require the software itself to generate phone numbers randomly or sequentially. The court therefore denied dismissal based on the alleged failure to plead an automatic telephone dialing system.

Arbitration and Consent

To compel arbitration, the Campaign had to demonstrate that a valid arbitration agreement existed between it and Pederson. The Campaign presented evidence that someone entered Pederson’s name and actual cell-phone number into the Campaign’s database. Pederson denied doing so and pointed out that other information in the submission was incorrect. The Campaign did not provide additional information, such as location or internet-protocol data, showing that Pederson was the person who entered the information.

The court held that the Campaign had not carried its burden to show that Pederson entered into any agreement, including an arbitration agreement. It therefore denied the request to compel arbitration. The court also declined to dismiss Pederson based on consent, while noting that the Campaign could raise its good-faith-consent argument as an affirmative defense at the summary-judgment stage.

Stay Request and Disposition

The Campaign also sought a stay pending a Supreme Court decision concerning the constitutionality of the TCPA. The court declined to stay the case because it considered it unlikely that the Supreme Court would invalidate the TCPA in its entirety.

The court’s order denied the Campaign’s Motion to Dismiss, Compel Arbitration, or Stay. The order did not resolve whether the plaintiffs ultimately would prevail on their TCPA claims.