Conley v. Visalus, Inc.

First MOTION for Summary Judgment with Brief In Support

N.D. Ga.September 6, 2016

1 QB\41425565.1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION PAMELA CONLEY, Plaintiff, -vs- VISALUS, INC., Defendant. CASE NO: 1:16-cv-00228-ELR Defendant's Motion for Summary Judgment Pursuant to Rule 56, Federal Rules of Civil Procedure, Defendant, ViSalus, Inc. (“ViSalus”), by and through its undersigned attorneys, moves for summary judgment because as a matter of law, Plaintiff’s claim under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §227, et seq. fails. Plaintiff Pamela Conley (“Plaintiff”) seeks statutory damages for breach of the TCPA based on text messages that ViSalus sent to her cellular phone from May 20, 2015 to October 6, 2015. ViSalus is a direct marketing company that distributes various products, including a powdered meal replacement protein shake mix, directly to customers and through independently contracted promoters. In 2014, Plaintiff signed up to be a ViSalus promoter and subscribed her cellular phone to receive text messages called the “Daily Share” about ViSalus news. Plaintiff contends that she revoked consent to receive the Daily Share text messages on May 20, 2015. Case 1:16-cv-00228-ELR Document 25 Filed 09/06/16 Page 1 of 3 2 QB\41425565.1 ViSalus is not liable under the TCPA because the web-based platform by which it sends the Daily Share is not an automatic telephone dialing system, and therefore not restricted by the TCPA. 1 Accordingly, as a matter of law, ViSalus is entitled to summary judgment. Respectfully submitted, /s/ Sarah R. Anchors Sarah R. Anchors (admitted pro hac vice) Quarles & Brady LLP 2 N. Central Ave. One Renaissance Square Phoenix, Arizona 84004-2391 (602) 229.5200 Sarah.anchors@quarles.com Steven J. Pritchett Morris, Manning & Martin, LLP 1600 Atlanta Financial Center 3343 Peachtree Road, N.E. Atlanta, Georgia 30326-1044 (404) 504-7699 spritchett@mmmlaw.com Attorneys for Defendant 1 Furthermore, even if Plaintiff could demonstrate that the system is an automatic telephone dialing system (which it is not), as a matter of indisputable fact, Plaintiff did not request that ViSalus stop sending her text messages until at least September 8, 2015. And therefore, at the very least, ViSalus is entitled to judgment in its favor to the extent Plaintiff’s claim is for text messages she received from May 20, 2015 through September 8, 2015. Case 1:16-cv-00228-ELR Document 25 Filed 09/06/16 Page 2 of 3 3 QB\41425565.1 CERTIFICATE OF SERVICE I hereby certify that on September 6, 2016, a true and correct copy of the foregoing document was filed electronically using the Court’s CM/ECF electronic filing system, causing a copy of the same to be sent to the following counsel of record: /s/ Sarah R. Anchors Sarah R. Anchors (pro hac vice) sarah.anchors@quarles.com Case 1:16-cv-00228-ELR Document 25 Filed 09/06/16 Page 3 of 3