Fenwick advised Shopkick to develop best practices to avoid liability under the Telephone Consumer Protection Act (TCPA), which paid dividends when the company was faced with a TCPA action. Like many popular mobile apps, Shopkick’s app prompted users to send text messages to invite friends to download the app. Recognizing the potential risks of this marketing strategy, we worked with the company to develop text messaging practices in compliance with TCPA rules. Despite these precautions, Shopkick was sued under the TCPA in California federal court by a plaintiff claiming that she had received an unsolicited invitation text. After informing the plaintiff of our client’s policy not to send such texts and presenting evidence that the company had not sent the text in question, the plaintiff voluntarily dismissed the lawsuit without payment before any discovery was conducted or motions filed. Shopkick was sued again in the Northern District of California in Huricks v. Shopkick. The Fenwick team secured a win on a motion to dismiss, convincing Judge Chesney that plaintiff’s allegations of a use of an automated telephone dialing system were insufficient.
The Fenwick team was led by Brian Buckley and Rodger Cole.