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Warciak v. One Inc.

United States District Court, N.D. Illinois, Eastern Division

December 20, 2016

MATTHEW WARCIAK, Plaintiff,
v.
ONE, INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          MATTHEW F. KENNELLY United States District Judge.

         Matthew Warciak filed suit on behalf of himself and others similarly situated against One, Inc., the operator of a mobile application, alleging that One sent him and others unauthorized text messages. Warciak alleges that, in doing so, One violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA), 815 ILCS 505/2. One has moved to dismiss both claims. For the reasons stated below, the Court denies One's motion to dismiss Warciak's claim under the TCPA (count 1) and grants One's motion to dismiss Warciak's claim under the ICFA (count 2).

         Background

         One operates the "After School App", a social network application where high school students can send messages anonymously. After a user has downloaded the application, the user is prompted to provide access to his or her location in order for the application to find the user's school. The application then directs the user to select a school from a list of nearby schools. Once the user has selected a school, the application indicates that the user must verify that he attends that school before the user can access the application's main function. The application displays a button that reads "I'm a student verify now with Facebook." Once the user selects this prompt, the application analyzes the user's Facebook profile.

         The application then requires the user to complete a verification test. The application presents a screen that indicates "We are having trouble verifying" and presents another button reading "Identify classmates in contacts to prove I'm a student." If the user selects this button, the application then notifies the user that it would like to access his contacts. Once the user gives permission, another prompt states: "To verify you are a student, you must identify your classmates from the contacts." If the user selects "OK", the application generates a list of people titled "Student Verification." This list contains a mixture of the user's contacts and others unknown to the user. The user must select at least four classmates from the list of contacts before the application finishes verifying the user.

         The application then sends a text message to the selected students. It does not tell the user that it is sending these texts. The text message informs the recipients that they were "picked" by an anonymous boy or girl and provides a hyperlink to One's website. The link also directs the recipient to One's Apple store page, where the recipient can download the application.

         Warciak alleges that he received one of these text messages in June 2016. Warciak states that he did not use the application prior to receiving this message and that he did not provide his phone number to One. Further, Warciak claims that users of the application are not aware that the text messages are being sent, nor have they authorized these text messages. Warciak alleges that One never informs users that the selected students will receive a text message, what the content of the message will be, when the text message will be sent, or what number the message will be sent from. Compl. ¶ 21. Warciak further alleges that One intentionally fails to disclose this feature to the user and fails to request permission from the user to send these messages. Id. ¶ 22.

         Warciak therefore claims that One's transmission of these text messages to himself and others violates both the TCPA and the ICFA. Warciak also alleges that One caused consumers actual harm by sending these unauthorized text messages. Id. ¶ 28. Specifically, Warciak claims that he and others have suffered injuries including a violation of statutory rights, the diminished value and utility of their telephone equipment and subscription services, the value of the time spent fielding unwanted text messages, the wear and tear on their telephone equipment, the loss of battery life, and the electricity costs required to recharge their phones. Id. ¶ 29.

         One has moved to dismiss both claims, arguing that it is not the "initiator" of the text messages as required under the TCPA and that Warciak has failed to state a claim under the ICFA.

         Discussion

         In considering a motion to dismiss for failure to state a claim, the court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the plaintiff. St. John v. Cach, LLC, 822 F.3d 388, 389 (7th Cir. 2016). A complaint must provide enough factual information to state a claim to relief that is plausible on its face and raise a right to relief that is above the speculative level. Camasta v. Jos. A. Bank Clothiers, Inc., 761 F.3d 732, 736 (7th Cir. 2014).

         I. TCPA claim

         Warciak alleges that One's transmission of the text messages violates section 227 of the TCPA. Compl. ¶¶ 42-49. Section 227(b)(1)(A) prohibits an individual from making any call, other than for emergency purposes or with the prior consent of the called party, using an automatic telephone dialing system. 47 U.S.C. § 227(b)(1)(A). Specifically, the FCC's implementing rule states that "no person or entity may initiate any telephone call to the specified recipients." In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 (”FCC Order"), 30 F.C.C.R. 7961, 7978 (2015) (internal quotation marks omitted). The parties do not dispute that a text message qualifies as a "call" under the TCPA. Instead, One argues that the users- and not One-initiated the text messages and therefore One cannot be liable under the TCPA.

         The Supreme Court and the Seventh Circuit have yet to address the question of who, for purposes of the TCPA, initiates a text sent through a mobile application. In 2015, the Federal Communications Commission (FCC) issued an order in which it considered this issue and determined that the operator of a mobile application can be- but is not always-the initiator of invitations sent from the application. See generally FCC Order, 30 F.C.C.R. 7961. Final orders issued by the FCC are binding on this court under the Hobbs Act, 28 U.S.C. ยง ...


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