Seventh Circuit Reverses Grant of Summary Judgment as Premature

by Manatt, Phelps & Phillips, LLP
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Reversing dismissal of a Telephone Consumer Protection Act (TCPA) class action, the U.S. Court of Appeals, Seventh Circuit ruled that a plaintiff should have been afforded the opportunity to conduct discovery before his claim was tossed out on summary judgment.

In a 2016 Illinois federal court complaint, Ricky Franklin asserted that Express Text sent him 115 text messages without his consent in violation of the TCPA. Most of those messages allegedly advertised WorldWin events in the Atlanta area. Franklin eventually replied “HELP” to one of those messages and received a response directing him to call Express Text if he did not wish to receive future messages. Franklin did so, and two days later an Express Text employee called him and confirmed he had been removed from the company’s database. Oddly, Franklin then replied to earlier messages, receiving automated responses instructing him to reply “STOP to Opt Out.” Instead, Franklin responded various times with other messages, such as “Hi” and “Is this a real person answering these text messages?” Franklin alleged that the advertising messages he received and the responses to his outgoing messages violated the TCPA.

Shortly after answering the complaint, Express Text moved for summary judgment, arguing that it did not compose the messages at issue and was simply a platform for distributing the texts, pointing the finger at WorldWin as the company that “sent” the messages to Franklin in violation of the statute.

Not surprisingly, Franklin opposed the motion and asked the court not to stay a decision until he could conduct discovery, maintaining that he needed more information to understand the relationship between Express Text and WorldWin.

The district court judge disagreed and granted the defendant’s motion for summary judgment. Relying heavily on the affidavit of Ashish Patel, Express Text’s chief operating officer, the judge ruled that the defendant merely provided a software platform and that the company’s client sent the messages to the plaintiff.

Franklin appealed, seeking an opportunity to conduct discovery on issues such as “any and all agreements” between Express Text and third parties, as well as details on how the defendant’s platform works.

The Seventh Circuit agreed that Franklin deserved a shot at discovery, chastising the district court for faulting the plaintiff for not producing “a hint of evidence” about the relationship between WorldWin and Express Text.

“[W]e do not see how Franklin possibly could refute the facts set forth in Patel’s affidavit—which constituted virtually the only evidence in the record and was the basis for the district judge’s conclusion—without an opportunity to ask how Express Text’s system works or inquire into the relationship between WorldWin and Express Text,” the federal appellate panel wrote. “The affidavit was unrebutted because Franklin lacked competent evidence. Any agreements between WorldWin and Express Text, including whatever user agreement or terms of service Express Text has with its customers, might show that Express Text is responsible for the text messages received by Franklin, or they might not.”

The defendant’s argument that no discovery would have produced information about a relationship where none existed “essentially requires Franklin to take the company’s word as fact without testing the premise,” the court added. “Express Text emphasizes that it is ‘undisputed’ that Express Text was not the ‘sender/initiator’ of the text messages; but that argument makes Franklin’s point: he could not dispute that fact properly with no access to discovery.”

Permitting Franklin to “seek reasonable discovery,” the Seventh Circuit vacated summary judgment in favor of the defendant and remanded the case. However, the Seventh Circuit barred Franklin from pursuing discovery concerning the messages Franklin received after he was removed from the database, as the court “readily agree[d] with the district judge’s conclusion that those messages are not of the kind prohibited by” the TCPA.

To read the order in Franklin v. Express Text, LLC, click here.

Why it matters: The federal appellate panel found the district court judge’s grant of summary judgment was an abuse of discretion that left the plaintiff without access to discovery, remanding the case for Franklin to “seek reasonable discovery.”

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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