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.