By John Greiner, of Graydon Head & Ritchey LLP
David Emanuel attended a Lakers game in October 2012 at the Staples Center. During the game, the scoreboard displayed an invitation to fans to text and have their message displayed on the scoreboard.
Emanuel, in an effort to impress his date, sent this text to the designated number: “I love you Facey. Happy Date Night.” Emanuel then received this text in response: “Thnx! Txt as many times as u like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. MSG&Data Rates May Apply. Txt STOP to quit. TXT INFO for info.”
Apparently not wishing to receive any messages from the Lakers, Emanuel then replied by texting “STOP,” to which he received an additional reply text.
Based on those two return texts, in November 2012 Emanuel filed a law suit on behalf of himself and similarly situated fans alleging the Lakers violated the federal Telephone Consumer Protection Act claiming that the return text from the Lakers violated the TCPA’s prohibition on sending unsolicited text messages soliciting business. Emanuel contended that he never gave his express consent to receive the confirming message.
The Lakers filed a motion to dismiss, arguing that Emanuel gave his consent to the confirming text simply by initiating the communication with the Lakers. The Lakers also alleged in their motion that the suit could not survive because Emanuel failed to adequately allege that the franchise used an automatic telephone dialing system when sending him the text as required by the statute.
Emanuel countered that the classification of the message as “confirmatory” was incorrect, because the Federal Communications Commission has defined a confirmatory message as one that “confirms the receipt of that subscriber’s request to opt out of receiving future text messages” and that just one unsolicited text constitutes a violation of the TCPA.
The court granted the Lakers’ motion. It cited FCC regulations which provide: “persons who knowingly release their phone number have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” The court noted that its conclusion was a “common sense” reading of the statute.
A copy of the court’s lower decision can be viewed at: http://www2.bloomberglaw.com/public/desktop/document/David_M_Emanuel_v_The_Los_Angeles_Lakers_Inc_Docket_No_212cv09936
Emanuel, however, did not concede and took an appeal to the United States Court of Appeals for the 9th Appellate Circuit. In early 2014, the two sides announced that they had reached a settlement for an undisclosed amount.
Jack Greiner
Jack Greiner practices in the areas of commercial litigation and media law. He has considerable practice experience in courts throughout Ohio, as well as federal courts. His work has included litigation of First Amendment issues, access matters and intellectual property disputes. He is especially proud of his work on public records cases. He has handled dozens of cases and helped establish a favorable body of law in Ohio requiring that records be available to the public. Mr. Greiner’s practice includes libel defense litigation, and pre-broadcast and prepublication review. Recently, he has written and spoken extensively on emerging issues in social media.
