9th Circ. Tosses TCPA Appeal at Consumers' Request

January 27, 2016

​The Ninth Circuit Court of Appeals has dismissed the appeal of a 2015 Order concluding that shopkick Inc. does not send promotional texts to its users’ contacts. The district court order being appealed, secured for shopkick by a Fenwick team led by partner Brian Buckley, marks the first instance of a court granting summary judgment to an app provider based on recent guidance from the Federal Communications Commission.

Shopkick operates an app that offers discounts and special deals at various retailers.

In 2014, a class action suit alleged shopkick violated the TCPA by sending promotional texts to the contacts of shopkick users. Shopkick moved for summary judgment, arguing that shopkick did not send the invitational texts at issue, as shopkick users had to take a series of affirmative steps to cause any messages to be sent. U.S. District Judge Maxine M. Chesney ruled in shopkick’s favor, finding that the promotional texts were sent by users themselves, not by shopkick, Law360 reported.​

"We are glad the court recognized that these are user-initiated text messages and that companies like shopkick should be free to offer their users the option of sending text messages without fear of TCPA (Telephone Consumer Protection Act) liability," Fenwick’s Annasara Purcell, a member of the shopkick team, told Law360 who covered the case in a recent article.

The lawyers who filed the class action suit appealed Judge Chesney’s decision. It was that appeal that the Ninth Circuit recently dismissed.

"We hope that other courts will follow Judge Chesney’s lead,” Purcell said. The other members of the Fenwick team included Rodger Cole and Sean Wikner.

The full article is available through the Law36​0 website ​(subscription required).​