Pimental v. Google And The TCPA

Google Privacy PolicyJudge Yvonne Rogers, United States District Court, for the Northern District of California, recently filed an opinion denying Google’s motion to dismiss a pending class action lawsuit. The case, Pimental v. Google, involves advertising practices Google used to promote Disco, a mass messaging service under the Google umbrella. The case began when the plaintiffs, Nicole Pimental and Jessica Franklin, filed a complaint alleging that Google violated the Telephone Consumer Protection Act, or TCPA.

What Is Disco?

Customers using Disco receive a group cell phone number. The members of the group register by submitting their numbers to Google; once the group has been formed, members may send group-wide messages by dialing the communal number. According to the complaint, as soon as the group’s creator registers the communal number, the entire group receives an automated message from Google. The message states: “Disco is a group texting service. Standard SMS rates may apply or chat for free w/our app… [link deleted].” The plaintiffs, who contend that the message is an automated advertisement, filed a class action lawsuit on behalf of any Disco users who received the introductory message.

TCPA Violations

The plaintiffs must prove four elements to establish a violation of the TCPA: First, the defendant made a call; second, the defendant used an automated dialer; third, the number the defendant called was registered to a cellular phone service; and fourth, the defendant did not have permission to make the call.

In the motion to dismiss, Google’s attorneys argued that the plaintiffs failed to show that Google used an automated dialer to send the messages.

What Constitutes An Automated Dialing System

The TCPA defines an automated dialing system as “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator [and] to dial such numbers.”

As the courts have interpreted the TCPA, a defendant may not use a machine that can either store or generate numbers to send unsolicited text messages. Courts focus on the nature of the machine, not the method used to send the messages or the way the defendant acquired the numbers.

Judge Rogers Ruling

In her opinion, Judge Rogers observed that other judges ruled that plaintiffs only need to accuse the defendant of harvesting numbers and automatically sending mass text messages. The mere accusation allows courts to infer that the defendant’s equipment is capable of randomly generating or storing numbers. Relying on those precedents, Judge Rogers concluded that the plaintiffs were entitled to a chance to present their case to a fact finder.

Google also argued that the text messages were non-commercial communications entitled to First Amendment protection. However, Judge Rogers noted that the plaintiffs averred in their complaint that the messages were commercial. As Google’s argument contradicted the facts alleged by the plaintiffs, it could not be resolved before trial.

What It All Means

This ruling does not mean the plaintiffs have won the lawsuit. The American justice system recognizes two fundamental issues: questions of law and questions of fact. In most cases, the jury determines the facts of the case, but the judge decides how the law applies. To prevail on a motion to dismiss, the defendant must argue that even if the jury believed all of the plaintiff’s allegations, the judge would be forced to rule in the defendant’s favor as a matter of law. In this case, Judge Rogers held that the plaintiffs had made allegations that, if the jury believed them, would establish that Google violated the law. As a result, the case could not be decided on a motion to dismiss, and the plaintiffs are now entitled to present their case to a jury.

It is rare, however, for a class action lawsuit to go to trial. Many corporations are willing to litigate individual lawsuits; even large verdicts represent only a small percentage of a national corporation’s annual budget.

In a class action suit, however, thousands or even millions of individual cases all ride on the same verdict. As a result, when a company goes to trial and loses a class action case, the damages often bankrupt the corporation. Due to the enormity of the risk and the high cost of protracted litigation, corporations typically settle once the court has certified the class and denied the company’s motion to dismiss. This allows the parties to avoid a costly trial by reaching a settlement that does not irreversibly destructive.

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