Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank
[Post by Venkat Balasubramani]
Ryabyshchuk v. Citibank, 11-cv-1236 – IEG (S.D. Cal.; Nov. 28, 2011)
Plaintiff alleged that he contacted Citibank and inquired about a credit card. Later that day, he alleged he received the following unsolicited text from Citibank:
Free Text Msg: Citi Cards needs to talk with you regarding your recent application. Please call 866-365-8962. To Opt-Out reply STOP.
Plaintiff replied “STOP” and alleged that he received the following from Citibank:
Free Text Msg: Per your request you will no longer receive text alerts from Citi Cards Credit Dept. If you have any questions call 866-365-8962.
Plaintiff sued for violations of the Telephone Consumer Protection Act, seeking statutory damages ($500 per text) and treble damages. Citibank moved to dismiss.
The court says that text messages are “calls” within the meaning of the TCPA, and any text sent with equipment which has the capacity to store or produce telephone numbers using a random or sequential number generator falls within the TCPA. (See Satterfield v. Simon & Schuster.)
Citibank argued that plaintiff “consented” to the text and first relied on plaintiff’s initial complaint where he alleged that he “provided his cell phone number” to Citibank in connection with the credit card application. Plaintiff amended his complaint to avoid any implication that he provided his number, instead alleging the second time around that he “contacted Citibank … by telephone” in connection with a possible credit card. The court says that plaintiff should be allowed to revise his pleadings and there is nothing in the rules which prohibit plaintiffs from making inconsistent or even contradictory allegations in successive pleadings.
Citibank also relied on two FCC pronouncements to argue that plaintiff consented. The FCC stated in 1992 that people who “knowingly release their phone numbers have . . . given their invitation to . . . be called . . . absent instructions to the contrary.” The FCC also stated in a 2008 ruling that calls to wireless numbers “in connection with an existing debt” fall under the ‘prior express consent’ exception to the TCPA. Specifically, the FCC stated:
the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted that that number regarding the debt.
The court says that it’s unclear at the pleading stage whether plaintiff released his number “knowingly,” and what limitations he attached to the release of his number. The court also says that the FCC has recognized the burden consumers may face in proving that they did not provide consent, and thus senders should bear the evidentiary burden of showing that consent was provided. Given the state of the pleadings, the court says the consent issue is better suited for adjudication at the summary judgment stage, rather than the pleadings stage.
Ouch. Not only does the initial text violate the TCPA (in the absence of consent), even the text which confirms Ryabyshchuk would not receive any further text messages can violate the statute.
The rules governing unsolicited text messaging leave little room for those who send unsolicited texts. Despite the texts relating to a proposed transaction which plaintiff admitted he contacted Citibank about, and despite Citibank apparently honoring plaintiff’s opt-out request, Citibank may still be on the hook! Relying on a check-the-box opt-in that says “please send me text messages regarding various topics to XXX-XXX-XXXX” would seem to be the prudent choice. The defense that the recipient provided a phone number in the course of a proposed transaction does not insulate Citibank here. Although Citibank may ultimately prove consent, the fact that it was unable to get rid of the lawsuit at the pleading stage means that it has to deal with the expense of discovery and summary judgment.
The odd thing about this case is that Ryabyschuck obviously anticipated or implicitly requested additional contact with Citibank. He filled out a credit card application and included his phone number. Citibank would have to comply with certain restrictions, but it could have avoided the prospect of liability by calling Ryabyshuck on the phone. Because it chose to text him–which some would say is less intrusive–Citibank got tagged with a lawsuit.