Jalen Epps v. Gap Inc. et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.May 23, 2017

1 William B. Sullivan, State Bar No. 275059 wsullivan@hwglaw.com Harris, Wiltshire & Grannis LLP 1919 M Street NW, Ste. 800 Washington, DC 20036 Telephone: 202-730-1300 Fax: 202-730-1301 Counsel to Gap, Inc. 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 PLEASE TAKE NOTICE that on June 26, 2017, at 10AM, or as soon 19 thereafter as this matter may be heard in the above-entitled Court located at 350 20 West First Street, Defendant Gap, Inc. (“Gap”) will and hereby does move the 21 Court to dismiss this case because Plaintiff Jalen Epps has failed to state a claim 22 upon which relief can be granted. This motion is based on the Memorandum of 23 Points and Authorities that is attached hereto, the complete files and records in 24 this action, and such oral and documentary evidence as may be allowed at the 25 hearing of this motion. 26 JALEN EPPS, an individual, Plaintiff, v. THE GAP, INC., a Delaware corporation; and DOES 1-10, inclusive, Defendants. Case No. 2:17-cv-03424 NOTICE OF MOTION AND MOTION TO DISMISS Hearing Date: June 26, 2017 Time: 10AM Judge: Michael W. Fitzgerald Courtroom: 5A Case 2:17-cv-03424-MWF-AGR Document 9 Filed 05/23/17 Page 1 of 3 Page ID #:107 2 HARRIS, WILTSHIRE & GRANNIS LLP WILLIAM B. SULLIVAN By: /s/ William B. Sullivan Attorney for Defendant Gap, Inc. This motion is made following the conference of counsel pursuant to 1 L.R. 7-3, which took place on May 9, 2017. The parties could not come to an 2 agreement. 3 4 DATED: May 23, 2017 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 2:17-cv-03424-MWF-AGR Document 9 Filed 05/23/17 Page 2 of 3 Page ID #:108 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PROOF OF SERVICE I, the undersigned, declare: I am a citizen of the United States of America, am over the age of eighteen (18) years, and am not a party to the within action. My business address is 1919 M Street, NW, Eighth Floor, Washington, D.C., 20036. On May 23, 2017, I served the foregoing document(s) described as follows: NOTICE OF MOTION AND MOTION TO DISMISS on the interested parties by placing a true and correct copy thereof in a sealed envelope(s) addressed as follows via U.S. Mail: Scott J. Ferrell and Victoria C. Knowles Pacific Trial Attorneys 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 I deposited such sealed envelope(s) with postage thereon fully prepaid in the United States mail in Washington, D.C. I declare under penalty of perjury under the laws of the District of Columbia that the above is true and correct. Executed on May 23, 2017, in Washington, D.C. Thomas Reid 3 Case 2:17-cv-03424-MWF-AGR Document 9 Filed 05/23/17 Page 3 of 3 Page ID #:109 1 William B. Sullivan, State Bar No. 275059 wsullivan@hwglaw.com Harris, Wiltshire & Grannis LLP 1919 M Street NW, Ste. 800 Washington, DC 20036 Telephone: 202-730-1300 Fax: 202-730-1301 Counsel to Gap, Inc. 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 JALEN EPPS, an individual, Plaintiff, v. THE GAP, INC., a Delaware corporation; and DOES 1-10, inclusive, Defendants. Case No. 2:17-cv-03424 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS Hearing Date: June 26, 2017 Time: 10AM Judge: Michael W. Fitzgerald Courtroom: 5A Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 1 of 19 Page ID #:110 2 TABLE OF CONTENTS 1 Page 2 INTRODUCTION ................................................................................................... 6 3 FACTUAL BACKGROUND .................................................................................. 8 4 ARGUMENT ........................................................................................................... 9 5 I. LEGAL STANDARD ................................................................................... 9 6 II. EPPS HAS FAILED TO STATE A TCPA CLAIM ..................................... 9 7 A. Epps’ claims are not within the TCPA’s zone of interests. ..................10 8 B. Epps did not plausibly allege that she revoked consent because her 9 method of revocation was unreasonable. ........................................................12 10 C. Epps failed to plausibly allege that the texts were sent using an 11 autodialer. ........................................................................................................16 12 III. BECAUSE EPPS DOES NOT STATE A TCPA CLAIM, HER UCL 13 CLAIM MUST ALSO FAIL ..............................................................................17 14 CONCLUSION ......................................................................................................18 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 2 of 19 Page ID #:111 3 TABLE OF AUTHORITIES 1 Page(s) 2 Cases 3 Abramson v. Marriott Ownership Resorts, Inc., 4 155 F. Supp. 3d 1056 (C.D. Cal. 2016) ..........................................................17 5 Ashcroft v. Iqbal, 6 556 U.S. 662 (2009) .......................................................................................... 9 7 Bell Atl. Corp. v. Twombly, 8 550 U.S. 544 (2007) .......................................................................................... 9 9 Cetacean Cmty. v. Bush, 10 386 F.3d 1169 (9th Cir. 2004).........................................................................10 11 City of Los Angeles v. Cty. of Kern, 12 581 F.3d 841 (9th Cir. 2009) ...........................................................................10 13 Cour v. Life360, Inc., 14 2016 WL 4039279 (N.D. Cal. July 28, 2016) .................................................17 15 Engman v. Nationstar Mortg. LLC, 16 2015 WL 12660412 (S.D. Cal. Dec. 4, 2015).................................................16 17 Epps v. Bon-Ton Dep’t Stores, 18 No. 2:17-cv-01964 (C.D. Cal. filed Mar. 13, 2017) .......................................12 19 Epps v. Earth Fare, Inc., 20 No. 2:16-cv-08221 (C.D. Cal. filed Nov. 3, 2016) ................................. passim 21 Flores v. Adir Int'l, LLC, 22 2015 WL 12806476 (C.D. Cal. May 8, 2015) ................................................16 23 Gager v. Dell Fin. Servs., LLC, 24 727 F.3d 265 (3d Cir. 2013) ..................................................................... 11, 13 25 In re Bluetooth Headset Prods. Liab. Litig., 26 654 F.3d 935 (9th Cir. 2011) ............................................................................. 8 27 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 3 of 19 Page ID #:112 4 Lexmark Int'l, Inc. v. Static Control Components, Inc., 1 134 S. Ct. 1377 (2014) ....................................................................................11 2 Pietzak v. Microsoft Corp., 3 2015 WL 7888408 (C.D. Cal. Nov. 17, 2015) ......................................... 17, 18 4 Pit River Tribe v. Bureau of Land Mgmt., 5 793 F.3d 1147 (9th Cir. 2015).................................................................. 10, 11 6 Satterfield v. Simon & Schuster, Inc., 7 569 F.3d 946 (9th Cir. 2009) ...........................................................................13 8 Stoops v. Wells Fargo Bank, N.A., 9 197 F. Supp. 3d 782 (W.D. Pa. 2016) .............................................................11 10 Tel. Sci. Corp. v. Asset Recovery Sols., LLC, 11 2016 WL 4179150 (N.D. Ill. Aug. 8, 2016) ...................................................11 12 Theme Promotions, Inc. v. News Am. Mktg. FSI, 13 546 F.3d 991 (9th Cir. 2008) ...........................................................................17 14 Thomas v. Dun & Bradstreet Credibility Corp., 15 100 F. Supp. 3d 937 (C.D. Cal. 2015) ..................................................... 10, 12 16 Troyk v. Farmers Grp., Inc., 17 90 Cal. Rptr. 3d 589 (Ct. App. 2009) ..............................................................18 18 Vaccaro v. CVS Pharmacy, Inc., 19 2013 WL 3776927 (S.D. Cal. July 16, 2013) .................................................17 20 Statutes 21 47 U.S.C. § 227 ........................................................................................ 10, 15, 16 22 Rules 23 Rules and Regulations Implementing the Telephone Consumer Protection Act of 24 1991, 25 Declaratory Ruling and Order, 30 FCC Rcd. 7961 (2015) ...................... 10, 13 26 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 4 of 19 Page ID #:113 5 Other Authorities 1 CTIA Short Code Monitoring Program, 2 Short Code Monitoring Handbook Version 1.7 (March 27, 2017) .................15 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 5 of 19 Page ID #:114 6 INTRODUCTION 1 This is the latest in a string of Telephone Consumer Protection Act 2 (“TCPA”) lawsuits that Plaintiff Jalen Epps has filed against retailers-at least 3 one of which this Court has already dismissed. Here, Epps signed up to receive 4 text messages from Defendant Gap, Inc. (“Gap”), and then, less than two weeks 5 later, attempted to opt out of the text message program. Rather than following 6 the clear instructions to opt out by texting “STOP,” she crafted long, complex 7 sentences asking Gap to unsubscribe her. Gap’s system-programmed in 8 accordance with industry standards-did not perceive her responses as requests 9 to unsubscribe and continued to send her messages. The other lawsuits that 10 Epps has filed all feature the same or similar fact patterns as the one described 11 here. 12 Epps filed suit against Gap on February 10, 2017. She contends that Gap 13 violated the TCPA by sending her text messages after she revoked her consent. 14 Epps’ suit fails as a matter of law for two reasons. First, Epps lacks prudential 15 standing because she does not fall within the “zone of interests” contemplated 16 by the statute. The TCPA does not protect individuals who manufacture harm 17 for themselves, which Epps is transparently attempting to do by actively 18 ignoring opt-out instructions and then claiming that companies such as Gap 19 have violated the TCPA by not unsubscribing her from the text message 20 campaign. Plaintiffs like Epps are not within the TCPA’s zone of interests, and 21 she thus lacks the requisite standing to bring claims. 22 Second, Epps’ TCPA claims are defective because she failed to plausibly 23 allege that Gap sent her text messages (1) without her consent and (2) using an 24 automated telephone dialing system (“autodialer” or “ATDS”). Although the 25 TCPA does not specifically address revocation of consent, the Federal 26 Communications Commission (“FCC”) has interpreted the statute to allow 27 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 6 of 19 Page ID #:115 7 revocation through “reasonable means.” Epps’ alleged methods of revocation 1 were not reasonable. She did not have the reasonable expectation that Gap 2 would recognize her means of revocation because Gap had given her 3 instructions multiple times on how to opt out of the texts that she ignored. 4 Moreover, it would create an undue burden on Gap to configure its system to 5 recognize the method of revocation that Epps insisted on using. Based on the 6 allegations in the complaint, Epps did not revoke consent using reasonable 7 means and, therefore, did not plausibly allege that her revocation was effective. 8 Epps also failed to plausibly allege that Gap sent her text messages using an 9 autodialer. She merely repeats the statutory definition of an autodialer, without 10 including any facts from which the Court can reasonably infer that an autodialer 11 actually was used. Courts do not consider conclusory statements sufficient 12 under the pleading standards, so Epps’ TCPA claims cannot survive. 13 Epps finally asserts that Gap violated the California Unfair Competition 14 Law (“UCL”). The UCL prohibits unlawful acts or practices, but for an act or 15 practice to be “unlawful,” it must be predicated on the violation of another 16 statute. Because Epps has failed to state a proper TCPA claim, her UCL claim 17 must necessarily also fail.1 18 1 Gap previously filed a Motion to Stay as well as a Motion to Extend Time on May 16, 2017. These motions are currently before the Court. Gap believes that the Court should stay this case for the reasons cited in its Motion to Stay. However, the Court has not yet ruled on either motion and, therefore, Gap is compelled to submit this Motion to Dismiss at this time to meet the deadline for filing a responsive pleading. Gap reserves the right to modify or refile its Motion to Dismiss if this Court grants the Motion to Stay. It is not necessary to address Epps’ claim for attorneys’ fees in detail here, because all of Epps’ claims should be dismissed. In any event, “courts generally are without discretion to award attorneys’ fees to a prevailing plaintiff unless . . . expressly authorized by the governing statute.” In re Bluetooth Headset Prods. Liab. Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 7 of 19 Page ID #:116 8 FACTUAL BACKGROUND 1 Epps is a citizen of Los Angeles County. First Am. Compl. ¶ 5, Dk. No. 2 1-2. She alleges that she subscribed to text messages from Gap on or about 3 December 15, 2016. Id. ¶ 15. She was aware that Gap gave instructions for her 4 to text “STOP” if she wished to opt out of receiving text messages. Id. ¶ 19 5 (stating that “notwithstanding Plaintiff's unequivocal demand that such text 6 messages cease, Defendant refused to stop sending texts to Plaintiff, claiming 7 that the only way that Plaintiff could withdraw his consent to receive unwanted 8 texts from Defendant was to text “STOP” to Defendant”). A mere week and a 9 half after signing up, Epps alleges that she attempted to opt out. Id. ¶ 16. 10 Rather than following the simple instructions on how to unsubscribe, Epps 11 texted a series of lengthy messages such as, “I would like for you to please 12 discontinue any further messages or updates, thank you very much” and “I’m 13 simply asking for you to unsubscribe my number from these services[.]” Id. ¶ 14 16-18. Epps claims that “the texts continued into 2017,” but she does not allege 15 that she ever texted “STOP” at any point. Id. ¶ 18. 16 Epps commenced this action against Gap in the Superior Court of Los 17 Angeles County on February 10, 2017, claiming that Gap continued to send text 18 messages after she revoked her consent to receive them in violation of the 19 TCPA and UCL. Epps subsequently amended her complaint to include a class 20 on April 27, 2017. See First Am. Compl. Gap removed this action to the 21 Central District of California on May 5, 2017. See Notice of Removal, Dk. No. 22 1. On May 16, 2017, Gap also filed a Motion to Stay this case pending two 23 Litig., 654 F.3d 935, 941 (9th Cir. 2011). As the TCPA does not provide for attorneys’ fees, Epps is not entitled to them in this case. Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 8 of 19 Page ID #:117 9 relevant appeals, see Mot. to Stay, Dk. No. 7, and a Motion to Extend Time, see 1 Mot. to Extend Time, Dk. No. 8. 2 ARGUMENT 3 I. LEGAL STANDARD 4 To survive a motion to dismiss pursuant to Federal Rule of Civil 5 Procedure 12(b)(6), a plaintiff must “provide the grounds of his entitlement to 6 relief [through] more than labels and conclusions, and a formulaic recitation of 7 the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 8 U.S. 544, 555 (2007) (internal quotations and alterations omitted). The factual 9 allegations “must be enough to raise a right to relief above the speculative 10 level.” Id. “Threadbare recitals of the elements of a cause of action, supported 11 by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 12 662, 678 (2009). Nor can a court assume that “legal conclusion[s] couched as 13 [] factual allegation[s]” are true. Twombly, 550 U.S. at 555. It is irrelevant 14 whether conclusory allegations seem likely to be true or realistic. Rather, 15 allegations that are of a “conclusory nature” are “disentitle[d] to the 16 presumption of truth,” even if the allegations are not “too chimerical,” 17 “unrealistic[,] or nonsensical.” Iqbal, 556 U.S. at 681. 18 II. EPPS HAS FAILED TO STATE A TCPA CLAIM 19 A plaintiff must have prudential standing and plausibly plead every 20 element of a claim to survive a motion to dismiss. Epps has failed on both 21 counts. She does not have standing because she does not fall within the “zone 22 of interests” of the TCPA, as Congress could not have intended for the statute to 23 protect individuals who manufacture lawsuits for the purpose of collecting 24 statutory damages. In addition, she has not pled the essential elements of a 25 TCPA claim. The TCPA prohibits the making of “any call (other than a call . . . 26 made with the prior express consent of the called party) using any automatic 27 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 9 of 19 Page ID #:118 10 telephone dialing system . . . to any telephone number assigned to a . . . cellular 1 telephone service.” 47 U.S.C. § 227(b)(1)(A).2 Thus, a plaintiff must allege 2 that “(1) Defendant called Plaintiff’s cellular telephone; (2) Defendant used an 3 ATDS; and (3) Plaintiff did not give express prior consent to the calls at issue” 4 to succeed in her TCPA claim. Thomas v. Dun & Bradstreet Credibility Corp., 5 100 F. Supp. 3d 937, 941 (C.D. Cal. 2015). Epps does not plausibly allege that 6 Gap texted her (1) without consent and (2) using an autodialer. 7 A. Epps’ claims are not within the TCPA’s zone of interests. 8 To bring suit under a federal statute, a plaintiff must establish that 9 Congress has granted “statutory” or “prudential” standing-in other words, that 10 Congress has conferred upon the plaintiff a right to sue. See Cetacean Cmty. v. 11 Bush, 386 F.3d 1169, 1175 (9th Cir. 2004) (“If a plaintiff has suffered sufficient 12 injury to satisfy the jurisdictional requirement of Article III but Congress has 13 not granted statutory standing, that plaintiff cannot state a claim upon which 14 relief can be granted.”). Prudential standing “is not a jurisdictional question,” 15 but rather, is decided under Rule 12(b)(6). Pit River Tribe v. Bureau of Land 16 Mgmt., 793 F.3d 1147, 1156 (9th Cir. 2015) (citing Lexmark Int’l, Inc. v. Static 17 Control Components, Inc., 134 S. Ct. 1377 (2014)). 18 To meet the prudential standing requirement, a party’s complaint “must 19 fall within the zone of interests” of the statute under which the party seeks to 20 state a claim. See City of Los Angeles v. Cty. of Kern, 581 F.3d 841, 846 (9th 21 Cir. 2009) (internal citations omitted). Zone of interests speaks to “whether 22 Congress intended to create a cause of action encompassing [plaintiff’s] 23 2 The FCC has determined that text messages constitute calls within the meaning of the TCPA. See Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, 30 FCC Rcd. 7961, 8020 ¶ 120 (2015) (“2015 TCPA Order”). Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 10 of 19 Page ID #:119 11 claims.” Pit River Tribe, 793 F.3d at 1156. “Whether a plaintiff comes within 1 ‘the “zone of interests”’ is an issue that requires us to determine, using 2 traditional tools of statutory interpretation, whether a legislatively conferred 3 cause of action encompasses a particular plaintiff's claim.” Lexmark Int'l, Inc. 4 v. Static Control Components, Inc., 134 S. Ct. 1377, 1387 (2014). 5 Congress could not have intended for the TCPA to create a cause of 6 action for those who purposefully seek to manufacture harm for themselves. 7 See Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) 8 (“Congress passed the TCPA to protect individual consumers from receiving 9 intrusive and unwanted calls.”). Indeed, a number of courts have ruled that 10 plaintiffs who manufacture harm do not fall within the TCPA’s zone of interests 11 and thus lack standing to bring claims. See, e.g., Tel. Sci. Corp. v. Asset 12 Recovery Sols., LLC, No. 15-CV-5182, 2016 WL 4179150, at *13 (N.D. Ill. 13 Aug. 8, 2016); Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 782, 805 14 (W.D. Pa. 2016). For example, in Stoops, the plaintiff had purchased multiple 15 cell phones in hopes that creditors would call her, and she could collect 16 statutory damages under the TCPA. See id. at 802. The court noted that 17 plaintiffs who file suit “for the sole purpose of collecting statutory damages[] 18 are not among the sorts of interests [the TCPA was] specifically designed to 19 protect.” Id. at 805 (internal quotation marks omitted). 20 Epps’ suit here is a blatant example of manufacturing claims under the 21 TCPA. Epps voluntarily subscribed to Gap’s text messages and received 22 unambiguous instructions on how to opt out if she decided she wanted to 23 unsubscribe. See First Am. Compl. ¶¶ 15, 19. When she took steps to opt out 24 less than two weeks later, she repeatedly failed to follow those clear 25 instructions. See id. ¶¶ 16-18. Much like in another one of Epps’ cases where 26 this Court dismissed her complaint, Epps ignored the instructions “without 27 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 11 of 19 Page ID #:120 12 explanation.” See Epps v. Earth Fare, Inc., No. 2:16-cv-08221, slip op. at 8 1 (C.D. Cal. Feb. 27, 2017). 2 Moreover, as previously noted, this is not Epps’ first TCPA case. Epps 3 has filed a number of nearly identical cases against other companies employing 4 the same modus operandi. See Earth Fare, slip op. at 2-3. In Earth Fare, this 5 Court took judicial notice that Epps had filed separate TCPA suits against 6 Office Depot, Inc., Dunkin’ Brands Group, Inc., and Walgreen Co. in addition 7 to Earth Fare. See id. Epps also filed a suit alleging the same claims against the 8 Bon-Ton Department Stores in this Court on the same day that she filed this 9 suit. Compl. at 1, Epps v. Bon-Ton Dep’t Stores, No. 2:17-cv-01964 (C.D. Cal. 10 Mar. 13, 2017). In these cases, like here, Epps claims that she opted out, 11 despite disregarding very clear instructions on how to do so. With each case, it 12 becomes increasingly difficult to believe that she does not understand how to 13 revoke consent to the text message campaigns to which she has subscribed, 14 such that she continues to experience the “nuisance” of these text messages. 15 B. Epps did not plausibly allege that she revoked consent because 16 her method of revocation was unreasonable. 17 The TCPA requires plaintiffs to allege that the texts received as the 18 source of the claimed injury were sent without express consent. See Thomas, 19 100 F. Supp. 3d at 941 (outlining the elements of a TCPA claim). Epps admits 20 that she subscribed to text messages in the first instance, see First Am. Compl. ¶ 21 15, and thus, the only question is whether she properly revoked her consent at 22 some point after that. 23 Although the TCPA does not speak to the issue of revocation, the FCC 24 has interpreted the statute to mean that consumers may revoke consent via 25 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 12 of 19 Page ID #:121 13 “reasonable means” if they no longer wish to receive calls or texts.3 See 2015 1 TCPA Order at 7993-94 ¶¶ 55-56 (“[W]e clarify that consumers may revoke 2 consent through any reasonable means.”); see also Gager, 727 F.3d at 271 3 (acknowledging that recipients of calls and texts may revoke consent, even 4 though the TCPA does not expressly mention revocation). To determine 5 whether revocation was requested by reasonable means, this Court considers 6 the totality of the facts and circumstances surrounding that specific 7 situation, including for example, [(1)] whether the consumer had a 8 reasonable expectation that he or she could effectively communicate 9 his or her request for revocation to the caller in that circumstance, and 10 [(2)] whether the caller could have implemented mechanisms to 11 effectuate a requested revocation without incurring undue burdens. 12 Earth Fare, slip. op. at 7 (quoting 2015 TCPA Order). 13 In the Earth Fare case, this Court found that Epps could not have had a 14 reasonable expectation that she could communicate her request for revocation 15 by sending lengthy sentences rather than texting “STOP.” See id. at 8 (“The 16 totality of the plausibly alleged facts, even when viewed in Plaintiff’s favor, 17 militate against finding that the Plaintiff’s revocation method was reasonable.”). 18 Specifically, the court stated, “Without explanation, Plaintiff ignored 19 Defendant’s clear instruction to stop the messages.” Id. On the issue of 20 whether the caller could have implemented mechanisms to effectuate the 21 requested revocation without incurring undue burdens, the court found that 22 “heeding Defendant’s opt-out instruction would not have plausibly been more 23 3 “Congress has delegated the FCC with the authority to make rules and regulations to implement the TCPA.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 953 (9th Cir. 2009). Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 13 of 19 Page ID #:122 14 burdensome on Plaintiff than sending verbose messages to terminate the 1 messages.” Id. 2 While Epps insists that she should be able to revoke consent in any 3 manner she sees fit, her claim mischaracterizes the law by reading the 4 “reasonable” restriction out of the revocation requirement. This Court and the 5 FCC have both indicated that revocation must be via reasonable means, not any 6 conceivable means. As in Earth Fare, Epps did not have a reasonable 7 expectation that she could effectively communicate her request for revocation 8 in the form that she attempted. She notes in her complaint, after all, that she 9 was aware of the instructions. First Am. Compl. ¶ 19. But Epps provides no 10 explanation whatsoever as to why she ignored these clear instructions. Cf. 11 Earth Fare, slip. op. at 8. Given that she was on notice about the instructions, it 12 was plainly unreasonable for her to send complex, lengthy sentences to Gap, 13 rather than simply texting “STOP.”4 14 Further, this Court must consider whether Gap could have implemented 15 mechanisms to effectuate Epps’ requested revocation without incurring undue 16 burdens. See Earth Fare, slip. op. at 7. Gap could not have programmed its 17 system to recognize every possible language variation that a subscriber may use 18 4 Epps’ insistence that she should be able to revoke consent in any manner she sees fit also ignores the laws of contract. Indeed, Epps admits that she signed up to receive Gap alerts, see First Am. Compl. ¶ 15, which designated the means by which Epps was required to revoke her consent. The question of whether the FCC’s ruling interpreting the statute to allow revocation through “reasonable means” allows contracting parties to select a particular revocation procedure by mutual agreement was raised in the appeal at the D.C. Circuit in both briefing and oral arguments. The decision will, therefore, have a significant impact on whether Epps’ claims are barred by the contractual agreement between her and Gap. See Mem. in Support of Mot. to Stay at 16- 18, Dk. No. 7-1. In the absence of any binding precedent on this issue, the Court has the authority to enforce the binding, contractual terms of the parties. Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 14 of 19 Page ID #:123 15 to revoke consent, especially as it could be difficult to interpret ambiguous, 1 non-standard statements. 5 To account for this burden, the wireless industry has 2 developed standards for opting out of text message campaigns, which are 3 widely used. These standards suggest implementing one-word responses like 4 “STOP,” “UNSUBSCRIBE,” “CANCEL,” “QUIT,” etc. for opting out. See 5 CTIA Short Code Monitoring Program, Short Code Monitoring Handbook 6 Version 1.7, at 4 (March 27, 2017), 7 https://www.usshortcodes.com/info/static/docs/Monitoring_Handbook.pdf. 8 Gap’s system follows these industry standards and is pre-programmed to 9 recognize only certain words as an opt-out request. Gap includes instructions 10 for opting out prominently when consumers subscribe to ensure that revocation 11 is as easy as possible for subscribers. It would be overly burdensome and 12 significantly more expensive for Gap to implement a system that would 13 recognize Epps’ “verbose” messages, and in any event, Epps has not alleged 14 that Gap has “deliberately design[ed] systems or operations in ways that make it 15 difficult or impossible to effectuate revocations.” Earth Fare, slip op. at 8. 16 Based on the allegations as pled in the complaint, Epps had no reasonable 17 expectation that her method of revocation would be effective, and Gap could 18 5 It does not follow from the fact that Gap employs an automated system for recognizing text responses that Gap uses an autodialer. The definition of an autodialer is equipment which has the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). That definition does not mean that any system that contains some automated elements is an autodialer. As noted infra, Epps has not alleged any facts to support that Gap uses a random or sequential number generator, a key element required to be an autodialer. Importantly, the meaning of what constitutes “capacity” in the definition of “autodialer” is currently on appeal before the D.C. Circuit, which Gap has briefed in greater detail in its Motion to Stay. See Mot. to Stay. Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 15 of 19 Page ID #:124 16 not implement mechanisms to recognize the type of revocation Epps wished to 1 use without undue burden. Therefore, Epps’ means of revocation is 2 unreasonable. She has not plausibly alleged that she effectively revoked 3 consent under the TCPA. 4 C. Epps failed to plausibly allege that the texts were sent using an 5 autodialer. 6 To state a valid claim, Epps has to plausibly plead that the texts were sent 7 using an autodialer. Under the statute, an autodialer means “equipment which 8 has the capacity-(A) to store or produce telephone numbers to be called, using 9 a random or sequential number generator; and (B) to dial such numbers.” 47 10 U.S.C. § 227(a)(1). A “[p]laintiff need not allege the technical ins-and-outs of 11 defendant’s text messaging system . . . [a]t minimum, however, he must allege 12 some indirect facts to suggest that [d]efendant’s system is capable of acting as 13 an ATDS.” Flores v. Adir Int'l, LLC, No. CV 15-00076-AB (PLAx), 2015 WL 14 12806476, at *4 (C.D. Cal. May 8, 2015); see also Engman v. Nationstar 15 Mortg. LLC, No. 15-CV-01142-AJB-JLB, 2015 WL 12660412, at *2 (S.D. Cal. 16 Dec. 4, 2015) (dismissing complaint because “Plaintiff provides no facts at all 17 from which Defendant or the Court may discern how or whether an ATDS was 18 actually used”). 19 Here, the complaint merely asserts that the texts were sent using an 20 autodialer without anything more. See First Am. Compl. ¶ 15 (“Defendant 21 placed these texts using an ‘automatic telephone dialing system’ (‘ATDS’) as 22 defined by 47 U.S.C. § 227(a)(1). This ATDS has the capacity to store or 23 produce telephone numbers to be called, including Plaintiff’s, using a random 24 or sequential number generator.”). Simply “parrot[ing]” the language of the 25 statute in the complaint is “a bare legal conclusion entitled to no weight.” 26 Vaccaro v. CVS Pharmacy, Inc., No. 13-CV-174-IEG (RBB), 2013 WL 27 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 16 of 19 Page ID #:125 17 3776927, at *2 n.4 (S.D. Cal. July 16, 2013) (internal citation omitted). In 1 Earth Fare, where Epps’ complaint used the same language as here to plead 2 that the defendant used an autodialer, this Court stated that her statements “do 3 not support a plausible inference that an ATDS was used.” Earth Fare, slip op. 4 at 9. In particular, the Court focused on the fact that “text messages sent in 5 response to a voluntary release of a user’s phone number” typically do not 6 indicate the use of an autodialer. Id. (internal quotation marks omitted). 7 Because Epps uses the same language to plead that Gap used an autodialer as 8 she did in Earth Fare, her pleading again does not meet the standard to 9 withstand a motion to dismiss. 10 III. BECAUSE EPPS DOES NOT STATE A TCPA CLAIM, HER UCL 11 CLAIM MUST ALSO FAIL 12 California’s UCL prohibits “unlawful” or “unfair” acts or practices. See 13 Abramson v. Marriott Ownership Resorts, Inc., 155 F. Supp. 3d 1056, 1066 14 (C.D. Cal. 2016). A claim under the “unlawful” prong of the UCL can only be 15 predicated on some other violation of the law. See Theme Promotions, Inc. v. 16 News Am. Mktg. FSI, 546 F.3d 991, 1008 (9th Cir. 2008) (citing Korea Supply 17 Co. v. Lockheed Martin Corp., 63 P.3d 937, 943 (Cal. 2003)) (“The UCL . . . 18 ‘borrows’ violations of other laws and makes them independently actionable as 19 unfair competition practices.”). 20 Epps claim here is based on a violation of the TCPA. Because she has 21 not plausibly stated a claim under the TCPA, her UCL claim thus must also fail. 22 See Pietzak v. Microsoft Corp., No. CV 15-5527-R, 2015 WL 7888408, at *2 23 (C.D. Cal. Nov. 17, 2015) (dismissing UCL claim where TCPA claim failed); 24 see also Cour v. Life360, Inc., No. 16-CV-00805-TEH, 2016 WL 4039279, at 25 *5 (N.D. Cal. July 28, 2016) (“Having dismissed the TCPA claim, the Court 26 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 17 of 19 Page ID #:126 18 HARRIS, WILTSHIRE & GRANNIS LLP WILLIAM B. SULLIVAN By: /s/ William B. Sullivan Attorney for Defendant Gap, Inc. therefore also grants dismissal of the UCL claim.”); Earth Fare, slip op. at 9-10 1 (dismissing Epps’ UCL claim because of her failure to state a TCPA claim). 2 The UCL “additionally requires that the plaintiff plead an economic 3 injury.” See Pietzak, 2015 WL 7888408, at *2. This means that the plaintiff 4 must demonstrate that he or she has “expended money or lost money or 5 property.” Troyk v. Farmers Grp., Inc., 90 Cal. Rptr. 3d 589, 624 n.30 (Ct. 6 App. 2009). Epps has not alleged that she has spent money or lost money due 7 to the text messages that Gap sent her. Accordingly, her UCL claim cannot 8 stand. 9 CONCLUSION 10 For the foregoing reasons, Gap respectfully requests that the Court 11 dismiss this case. 12 13 DATED: May 23, 2017 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 18 of 19 Page ID #:127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PROOF OF SERVICE I, the undersigned, declare: I am a citizen of the United States of America, am over the age of eighteen (18) years, and am not a party to the within action. My business address is 1919 M Street, NW, Eighth Floor, Washington, D.C., 20036. On May 23, 2017, I served the foregoing document(s) described as follows: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS on the interested parties by placing a true and correct copy thereof in a sealed envelope(s) addressed as follows via U.S. Mail: Scott J. Ferrell and Victoria C. Knowles Pacific Trial Attorneys 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 I deposited such sealed envelope(s) with postage thereon fully prepaid in the United States mail in Washington, D.C. I declare under penalty of perjury under the laws of the District of Columbia that the above is true and correct. Executed on May 23, 2017, in Washington, D.C. Thomas Reid 19 Case 2:17-cv-03424-MWF-AGR Document 9-1 Filed 05/23/17 Page 19 of 19 Page ID #:128 1 William B. Sullivan, State Bar No. 275059 wsullivan@hwglaw.com Harris, Wiltshire & Grannis LLP 1919 M Street NW, Ste. 800 Washington, DC 20036 Telephone: 202-730-1300 Fax: 202-730-1301 Counsel to Gap, Inc. 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 JALEN EPPS, an individual, Plaintiff, v. THE GAP, INC., a Delaware corporation; and DOES 1-10, inclusive, Defendants. Case No. 2:17-cv-03424 [PROPOSED] ORDER GRANTING MOTION TO DISMISS Hearing Date: June 26, 2017 Time: 10AM Judge: Michael W. Fitzgerald Courtroom: 5A Case 2:17-cv-03424-MWF-AGR Document 9-2 Filed 05/23/17 Page 1 of 3 Page ID #:129 2 The Honorable Michael W. Fitzgerald ORDER 1 The Motion to Dismiss, filed by Defendant Gap, Inc., in this matter came 2 on regularly for hearing before this Court on June 26, 2017. 3 Having considered the moving and opposition papers, arguments, and all 4 other matters presented to the Court, the Court finds that the Plaintiff Jalen 5 Epps has failed to state a claim upon which relief can be granted. 6 IT IS HEREBY ORDERED that Defendant Gap, Inc.’s Motion to 7 Dismiss is GRANTED. 8 9 Dated: _______________ ________________________ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Case 2:17-cv-03424-MWF-AGR Document 9-2 Filed 05/23/17 Page 2 of 3 Page ID #:130 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 PROOF OF SERVICE I, the undersigned, declare: I am a citizen of the United States of America, am over the age of eighteen ( 18) years, and am not a party to the within action. My business address is 1919 M Street, NW, Eighth Floor, Washington, D.C., 20036. On May 23, 2017, I served the foregoing document(s) described as follows: [PROPOSED] ORDER GRANTING MOTION TO DISMISS on the interested parties by placing a true and correct copy thereof in a sealed envelope(s) addressed as follows via U.S. Mail: Scott J. Ferrell and Victoria C. Knowles Pacific Trial Attorneys 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 I deposited such sealed envelope(s) with postage thereon fully prepaid in the United States mail in Washington, D.C. I declare under penalty of perjury under the laws of the District of Columbia that the above is true and correct. Executed on May 23, 2017, in Washington, D.C. Thomas Reid 3 Case 2:17-cv-03424-MWF-AGR Document 9-2 Filed 05/23/17 Page 3 of 3 Page ID #:131