A Chicago federal judge has dismissed a class action complaint
against the San
Francisco-based developer of the Down to Lunch smartphone app, saying app users
– and not the software itself – are responsible for “spam-vite” promotional
text messages sent to other people’s phones.
On April 22, 2016, attorney Ari J. Scharg, of the firm of
Edelson PC, of Chicago, filed suit in Cook County Circuit Court on behalf of
plaintiff Matthew Warciak and a putative class of other plaintiffs against app
maker Nikil Inc., alleging the app’s spike in popularity was in part powered by
improper marketing techniques using potential users’ mobile phones.
Down To Lunch aims to help friends - particularly, high
school and college students - suggest activities to other friends. When they
agree on an activity, such as “lunch,” “chill” or “study,” among others, those
wishing to participate click the button labeled “I’m Down.”
According to the complaint, Nikil used users’ contact lists
to generate lists of numbers and “programmed the application to automatically
send text messages” that used app users’ names to make it appear a friend had
“personally invited” those receiving the text messages to download Down To
Lunch “so you can both hang out together," in a technique the complaint
said is known as “spam-viting.”
On March 23 in Chicago, U.S. District Judge Thomas M. Durkin
granted Nikil’s motion to dismiss for failure to state a claim. He noted the
Telephone Consumer Protection Act’s prohibition on automatic telephone dialing
system to cellphone numbers for anything other than emergencies or with the
prior consent of the called party. For issues related to text messages, the
Federal Communications Commission issued an order clarifying how courts should
determine which party “initiated” a text.
According to Durkin’s opinion, when DTL users select the
“find friends” option, “the app seeks permission to access the user’s contacts,”
then tells users they can earn points - good toward T-shirts or in-app virtual
“stickers” - for getting friends to join the app, offering “two large button
options, ‘Skip’ and ‘Invite’ ” for each contact.
Durkin contrasted DTL with other software, noting that, unlike
other apps, “Down To Lunch does not ‘automatically’ send text messages to every
one of the user’s contacts. The Down to Lunch user, not the app itself, decides
whether any of the user’s contacts receive a text message generated by and through
Down to Lunch. Since the user decides whether the text gets sent, Nikil cannot
plausibly be said to have ‘initiated’ the text through Down to Lunch. Thus,
Warciak has failed to state a claim that Nikil violated the TCPA.”
Several district courts, Durkin wrote, used the FCC order as
justification for dismissing TCPA claims about mobile text invitations at the
pleading stage. Durkin said Warciak’s argument is not helped by his reliance on
a ruling in his favor on another pending action, a separate class action lawsuit he and
the Edelson firm also brought against the makers of the After School app, which
allows students attending the same high school to anonymously share messages. On
Dec. 20, U.S. District Judge Matthew F. Kennelly denied a motion from One Inc.,
maker of the After School app, to dismiss Warciak’s complaint in that case.
Durkin noted the differences in the two cases. Quoting
Kennelly, Durkin said the After School app “never indicates to users that they
are sending invitations,” while Warciak in his own complaint acknowledges DTL invitations
are initiated by users who are aware they will generate texts to their
contacts. Legally, Nikil is not the “initiator” of the messages, per Durkin,
undercutting Warciak’s ability to allege a TCPA violation.
Durkin dismissed Warciak’s complaint without prejudice,
granting him until April 21 to file a motion for leave to amend.
Nikil was represented in the action by attorneys with the
firms of Fenwick & West LLP, of Seattle and Mountain View, Calif., and of
Mandell Menkes LLC, of Chicago.