Emanuel v. The Los Angeles Lakers, Inc., No. cv-12-9936-GW(SHx), 2013 WL 1719035 (C.D. Cal. April 18, 2013)
According to the Complaint, Plaintiff attended a Lakers basketball game at which time he saw the following statement to fans in the arena: “TEXT your message to 525377.” Plaintiff sent a text message stating “I love you Facey. Happy Date night”– to the Lakers “for the sole purpose of having Defendant put a personal message on the scoreboard. He then received a response text stating “Thnx! Txt as many times as u like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. Msg & Data Rates May Apply. Txt STOP to quit. Txt INFO for info. Plaintiff filed a putative class action, claiming that the Lakers sent him the text using an automatic telephone dialing system “in order to attempt to solicit business from Plaintiff.”
Defendants moved to dismiss the Complaint with prejudice, arguing that because Plaintiff initiated communication with Defendant requesting that his message appear on the Staples Center score board, he consented to receiving the Lakers’ “confirmatory” text message.
Granting the Lakers’ Motion, the court stated:
“Plaintiff admits that he voluntarily sent a text to the Lakers seeking to display the contents of that message on the scoreboard at Staples Center. Though the Lakers allegedly failed to warn Plaintiff that he might receive a response, a “common sense” reading of the TCPA indicates that, by sending his original message, Plaintiff expressly consented to receiving a confirmatory text from the Lakers. “To hold otherwise would contradict the overwhelming weight of social practice: that is, distributing one’s telephone number is an invitation to be called[.]” Indeed, when Plaintiff sought to display his love for “Facey” on the Staples Center jumbotron via text, it is difficult to imagine how he could have been certain that the Lakers received his message without a confirmatory response. Furthermore, given that the Lakers’ reply notified Plaintiff that ‘Not all msgs go on screen,’ Defendant’s message provided Plaintiff with information relevant to his request. had Plaintiff been planning to inform his date that a special message was forthcoming, Defendant’s confirmatory response may have had the beneficial effect of tempering Plaintiff’s (or his date’s) expectations. While the specific impact of the Lakers’ message is obviously crucial for the purpose of the TCPA analysis, the fact that the confirmatory text included information relevant to Plaintiff’s request demonstrates – in part– why the message challenged here is not the kind of ‘intrusive, nuisance [telemarketing call‘ that Congress sought to prohibit in enacting the TCPA. For similar reasons, many federal courts have concluded that when a customer provides a company his or her phone number in connection with a transaction, he or she consents to receiving calls about that transaction: “[T]he authorities are almost unanimous that voluntarily furnishing a cellphone number to a vendor or other contractual counterparty constitutes express consent.”