With Craigslist Ad, Plaintiff Provided Consent for Contact

by Manatt, Phelps & Phillips, LLP
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Manatt, Phelps & Phillips, LLP

A Craigslist advertisement listing a phone number established consent to be contacted and a subsequent text from an online car retailer did not violate the Telephone Consumer Protection Act (TCPA), a federal court in Florida has ruled.

In a classified ad for the sale of a vehicle on Craigslist, Mark Edelsberg wrote: “Call [phone number] for more info … do NOT contact me with unsolicited services or offers.” In response, online car retailer Vroom sent a text to Edelsberg stating: “Hi Mark, I am Scott at Vroom. I saw you listed your Prius online & can make an offer but need you to fill out a few more details (takes 4 mins)” with a link to Vroom’s online appraisal tool.

Instead of clicking the link, Edelsberg sued, alleging that Vroom violated the TCPA by sending him the text.

Vroom moved for summary judgment, arguing that its text message was sent in direct response to the online classified ad posted by Edelsberg and did not constitute telemarketing. Not only that, the plaintiff expressly consented to receive the text by including his cell phone number in the advertisements and directing interested buyers to contact him for more information, the defendant argued.

Siding with the defendant, U.S. District Judge Darrin P. Gayles granted the motion for summary judgment.

The court’s first order of business: whether the text message constituted “telemarketing” pursuant to the TCPA. Had he clicked on the link, Edelsberg told the court, he would have been redirected to a webpage that contained Vroom’s vehicle appraisal form—as well as links to other portions of Vroom’s website, where it offers its own used cars for sale.

“Edelsberg contends that merely because the link redirected to a page on Vroom’s website, where upon his own choosing he could divert himself from the vehicle appraisal process and instead peruse Vroom’s used car inventory, that the purpose of the text message was telemarketing,” the court said. “The Court disagrees.”

A “plain reading” of the text indicated that Vroom sought to purchase the advertised vehicle but needed additional information regarding the car before it made an offer, the court wrote.

“It is clear that the purpose of the single text message from Vroom was to direct Edelsberg to a page on its website for him to enter information that would facilitate Vroom’s ability to purchase his car. While it is apparent that visiting Vroom’s website ‘could result in the increase in the chances’ of Edelsberg purchasing a used car sold by Vroom, Edelsberg ‘cites no authority indicating that this degree of connection between communication and purchase is sufficient to transform a text of the sort he received into a telemarketing message.’”

The court was similarly not persuaded that the text had a dual purpose message, refusing to permit the plaintiff to rely on Vroom’s overarching business model, which includes the sale of used cars, to transform the stated purpose of the message. The text had no advertising purpose and was invited by Edelsberg’s own online advertisement, the court held.

“Based on the context in which it was sent, there is simply no basis for construing Vroom’s message as the type of unsolicited communication referenced by the dual purpose rule,” the court said. “[C]ommunications that merely include collateral opportunities to purchase something from the caller do not constitute dual purpose messages where the opportunity to purchase something from the caller is too attenuated from the purpose of the initial communication.”

Based on this analysis, Vroom only needed to demonstrate that Edelsberg provided express consent to be contacted—something Judge Gayles had little difficulty in finding.

“The Court finds that by including his phone number in an online advertisement that he knew could be accessed by anyone with an Internet connection and directing interested buyers to contact him at the provided number for ‘more info,’ Edelsberg expressly consented to being contacted by Vroom at that number to facilitate the purchase of his advertised vehicle,” the court wrote. “Despite Edelsberg’s post hoc representations that he did not want to be contacted by dealerships or with automated messages, there are no such limitations included in Edelsberg’s actual Craigslist advertisement.”

The court agreed with the plaintiff that as a general principle, if a person lists a telephone number on the Internet in a car ad, he or she has not expressly consented to receive an automated call or text message about anything—a new refrigerator, for example. But the case at hand involved a car dealer responding to an ad offering to sell a car.

“Here, by including his cell phone number in his advertisement with instructions to contact him for more information, Edelsberg provided express consent for Vroom to contact him for that purpose,” the court concluded.

To read the order in Edelsberg v. Vroom, Inc., click here.

Why it matters: Judge Gayles agreed with the defendant that a Craigslist ad inviting readers to contact the seller for more information—and not placing limitations on automated messages or responses from certain parties—constituted express consent for the text message at issue. Further, that text was not advertising as it was sent in response to the ad, and the fact the plaintiff could have been distracted on the defendant’s website by cars for sale did not transform the message into marketing under the TCPA.

 

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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