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Facebook Ditches TCPA Suit Over Hack-Alert Texts, For Now

A California judge Thursday dismissed a proposed $5 million-plus class action alleging Facebook violates the Telephone Consumer Protection Act by sending unwanted automatic text messages about possible account hacks, calling a claim that the company sends the messages using an autodialer a “conclusory allegation.”

U.S. District Judge Jon Tigar granted Facebook’s motion to dismiss without prejudice and provided plaintiff Noah Duguid 30 days to file an amended complaint.

“Plaintiffs allegations do not support the inference that the text messages he received were sent using an ATDS [automatic telephone dialing system],” the judge wrote in the 11-page order issued Thursday.

Duguid’s attorney, Sergei Lemberg of Lemberg Law LLC, told Law360 on Friday that an amended complaint would be filed.

In his ruling, Judge Tigar acknowledged that because it may be difficult for a plaintiff to identify the specific type of dialing system used without the benefit of discovery, some courts have allowed TCA claims to proceed beyond the pleading stage, “where a plaintiff’s allegations support the inference” that an autodialing system was used. Duguid’s claims do not provide such backup, he said.

“Although plaintiff alleges that the operation of this system is ‘sloppy’ because messages are sent to individuals who never had a Facebook account, have never shared their phone number with Facebook, and/or who have requested deactivation of the login notifications, he does not suggest that Facebook sends text messages en masse to randomly or sequentially generated numbers,” the judge wrote.

And while it’s possible that Facebook used such a system, nothing in Duguid’s complaint pushed his claims from conceivable to plausible, the judge wrote.

Duguid suggested in his opposition to Facebook’s motion to dismiss that a predictive dialer, which stores numbers in a database and dials them automatically with a software prompt, also violates the federal law, but his complaint doesn’t allege that Facebook used a predictive dialer or equipment that functions as such, the judge states.

Filed in March 2015, Duguid's suit claims Facebook started texting his cellphone in late January of last year, even though he never gave his number to the company and never had any business dealings with it.

After Duguid allegedly sent the defendant a detailed email in April 2014 complaining about the messages and asking that they stop, Facebook replied with an automatic email telling him to log on to its website to report the problematic content.

Duguid allegedly answered with a message saying, “A human needs to read this email and take action. Thank you!” But he received the same automated email.

The Telephone Consumer Protection Act prohibits automated calls to a cellphone without prior express consent by the person being called, unless it's an emergency. The suit seeks to represent a class of individuals in the U.S. who didn't give Facebook their cell number and received one or more of the accused texts within the four years before the filing of the complaint, and a class of individuals who received texts in the same time frame despite telling Facebook they didn't want them.

With the proposed class members expected to number “more than a thousand,”a statutory $500 penalty for each violation of the Telephone Consumer Protection Act exceeds the $5 million threshold for federal jurisdiction, the complaint states.

In its motion to dismiss, Facebook said the warning messages about possible account hacks qualified as emergency notifications, making them exempt from liability under the TCPA.

The social media giant also asserted that Duguid hadn’t alleged plausible facts showing the company used an automatic dialing system to send the texts. Each notification is unique and sent to a single phone number at a specific time, Facebook said. The fact that the login warnings came "at all hours of the night" underscored they are only sent when an unauthorized user attempts to log in to a Facebook account associated, via the phone number provided by the account owner.

Nikki Stitt Sokol, associate general counsel for Facebook, said the company was pleased with the court’s ruling.

Duguid is represented by Trinette Kent, Sergei Lemberg and Stephen Taylor of Lemberg Law LLC.

Facebook is represented by Elizabeth L. Deeley, Kristin Sheffield-Whitehead, Andrew B. Clubok, Susan E. Engel and Carrie J. Bodner of Kirkland & Ellis LLP.

The case is Noah Duguid et al. v. Facebook Inc., case number 3:15-cv-00985, in the U.S. District Court for the Northern District of California.

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