Facebook Dodges Robotext Class Action Because Plaintiff Failed to Properly Allege Sufficient Facts That Automated Telephone Dialing System Was Used

Feb 28, 2017 | Topic: Class Actions

Many Facebook users have signed onto their accounts using unfamiliar devices (i.e. not their home computers).  We can all probably recall the sudden yearning to know the latest gossip from our social network while at work or at a friend’s house.  Unable to resist that urge we log-on using our work computer or our friend’s phone to “like” the latest photo or post our own selfie.  Suddenly, you get a text from an unfamiliar number letting you know that your Facebook account was accessed from an “unknown browser.”  This is a security feature Facebook uses to protect consumers from being hacked.  However, what happens when you get this text from Facebook, and you are not a Facebook user? That is what Noah Duguid (“Plaintiff”) attempted to challenge with his unsuccessful lawsuit in Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2017 U.S. Dist. LEXIS 22562 (N.D. Cal. Feb. 16, 2017).

Plaintiff asserts he started getting automated text messages from Facebook, which he claims he could not turn-off, despite his many efforts to do so, because he was not a Facebook user.  So, out of frustration with what he described as a text message bombardment, he filed suit against Facebook, alleging it sent text messages from an automated telephone dialing system (ATDS) in violation of the Telephone Consumer Protection Act (TCPA).  An automatic telephone dialing system is equipment that has the mere capacity to store or produce, and dial telephone numbers to be called using a random or sequential number generator.  47 U.S.C. § 227(a)(1).  

The United States District Court for the Northern District of California dismissed Plaintiff’s original complaint without prejudice because he failed to adequately allege that the text messages were sent using an ATDS as defined by the TCPA.  In response, Plaintiff filed an amended complaint asserting new factual allegations, and class claims.  The District Court dismissed Plaintiff’s amended complaint with prejudice. 

Facebook moved to dismiss the amended complaint for lack of standing and failure to state a claim under the TCPA.  The Court granted Facebook’s motion on the grounds that Plaintiff again failed to state a plausible claim under the TCPA.  The Court dismissed Plaintiff’s prior complaint because it reasoned Plaintiff’s allegation that Facebook’s login notifications are designed to alert users of when their account is accessed from a new device, only after the user adds their mobile number to their account, did not plausibly support an inference that Facebook was using an ATDS.  Rather, such allegation suggests that Facebook was directly targeting specific phone numbers only when an account was accessed from an unknown device.  Plaintiff did not suggest that Facebook was sending mass texts to random or sequentially generated numbers. 

In the amended complaint, Plaintiff also asserts that Facebook uses a computerized protocol for creating automated text, and that Facebook uses a two-part log-in approval process requiring users to enter a code sent to mobile phones via text message whenever users log-on from a new or unrecognized device.  The Court reasoned that these additional facts did nothing to strengthen the claim that Facebook uses an ATDS.  As the Court explained, the new allegations only further suggested that Facebook sent messages through direct not random targeting.  The remainder of Plaintiff’s other allegations were disregarded by the Court as merely conclusory recitals of the central elements of an ATDS, which do not support an inference that they are in fact present in this case. 

The Court also concluded leave to amend was futile, and dismissed Plaintiff’s complaint with prejudice.  In particular, Plaintiff did not suggest he could provide any additional allegations related to the use of an ATDS even if he was given a chance to file another amended complaint.  Further, Plaintiff’s allegations suggested an ATDS was not used. 

This case represents another win in California for defendants that often find themselves mired in TCPA litigation.