Editor's note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. Well, this is about as big a district court ruling in the text message space you’re ever going to see.
Twilio—the seemingly ubiquitous supplier of mass text aggregation services—has just earned a profoundly-important summary judgment ruling determining that its services do not qualify as an ATDS under the TCPA. While Twilio has been fighting for years to extract itself from TCPA cases by arguing that it cannot be held liable for texts sent by its customers using its platform, this latest ruling may be even better for it (and its customers) given the substantive nature of the ruling.
The case is Northrup v. Innovative Health Ins. Partners, LLC, Case No: 8:17-cv-1890-T-36JSS, 2020 U.S. Dist. LEXIS 31851 (M.D. Fl. Feb. 25, 2020) and it’s a doozy for a couple of reasons. First, as already mentioned, the case represents the first time Twilio’s platform has been found affirmatively to NOT be an ATDS and on an evidentiary basis. That is hugely important because a massive number of blast texts are sent via the Twilio platform nationwide. These texts—at least in the eyes of the Northrup court—are not subject to the TCPA.
Second, and more basically, Northrup is the first Court in the country to grant summary judgment to a Defendant following the Eleventh Circuit’s big Glasser ruling. In Glasser, of course, the Eleventh Circuit Court of appeal determined that a dialer is only an ATDS if it randomly or sequentially generates numbers to be dialed. The evidence in Northrup demonstrated that Twilio’s platform lacked that capability. So summary judgment was granted to the defense.
Third, the Northrup court also offered a very favorable (for Defendants) take on human intervention. The Court concluded that the human intervention needed to create a text campaign was sufficient to remove the platform from the TCPA. Thus, electing what numbers to text and determining the content to be sent to those numbers was plenty for the Court to treat the texts as manually transmitted. This is true although there was no meaningful intervention at the time of dial. As the Court put it: Plaintiff’s emphasis on the fact that instances of human intervention occurred before the devices dialed is not persuasive.”
Northrup is classically the sort of ruling that would have been unlikely—if nor unimaginable—in the MD Fl prior to Glasser. But with Glasser in hand, TCPA Defendants are now waging battle with a Voltron-esque flaming sword. We’ll keep an eye on these cases as they continue to pour in.
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