DocketNumber: Case No. 16-cv-07243-BLF
Citation Numbers: 351 F. Supp. 3d 1257
Judges: Freeman
Filed Date: 12/13/2018
Status: Precedential
Modified Date: 7/25/2022
On four separate occasions after booking travel on Defendant Agoda Company Pte. Ltd.'s website, Plaintiff An Phan received a text message from Agoda that read "Good news! Your Agoda booking [number]
*1259is confirmed. Manage your booking with our free app http://app-agoda.com/GetTheApp." Plaintiff filed this putative class action asserting a single cause of action: violation of the Telephone Consumer Protection Act of 1991 ("TCPA"),
Accordingly, for the reasons discussed below, Agoda's motion for summary judgment is GRANTED.
I. FACTS
A. Agoda's Booking Process and Policies
Defendant Agoda Company Pte. Ltd. ("Agoda") is an international travel service provider based in Singapore that allows consumers to book travel accommodations, including hotels and flights, online. See Compl. ¶ 11. ECF 1-2; Decl. of Alexis Siarkiewicz ISO MSJ ¶¶ 2-3 ("Siarkieweicz Decl."), ECF 37-2. Agoda has both a website and a phone app that allow customers to make bookings through substantively similar processes. Decl. of Anne Kelts ISO MSJ ("Kelts Decl."), Ex. 2 at 28-30, ECF 37-9. The app, like the website, has various functionalities, including allowing users to manage travel reservations, access vouchers and confirmation numbers, and locate booking properties on a map.
During the booking process, the customer first chooses the specifics of his booking, such as location, travel dates, and number of travelers.
Directly above the "Book Now" button, also on the payments page, is the statement "I agree with the Privacy Policy and general terms by booking this room."
Before the booking process is completed, the customer also selects whether to "opt in" or "opt out" of receiving Agoda's marketing promotions. Decl. of Richard Lyne ISO MSJ ¶ 6 ("Lyne Decl."), ECF 37-1. Once the booking process is completed, and the third-party hotel has confirmed to Agoda the customer's reservation, Agoda, through its third-party global messaging service provider Clickatell, sends a text message to the customer to confirm the booking. Kelts Decl., Ex. 2 at 30; Kelts Decl., Ex. 1 ¶ 5, ECF 37-8. Agoda sends confirmation text messages only to users who have both provided their phone numbers and agreed to Agoda's Terms of Use and Privacy Policy. See
B. Phan's Use of Agoda's Services and Receipt of Text Messages
On November 4, 2016, Plaintiff An Phan booked three hotel reservations through Agoda's website, and he made a fourth reservation on November 10, 2016. See Compl. ¶¶ 18-19; Kelts Decl., Ex. 2 at 14. For each booking, Phan provided his telephone number and agreed to the Terms of Use and Privacy Policy.
C. Procedural History
On November 14, 2016, Plaintiff filed the instant class action Complaint in the Superior Court of California for the County of Santa Clara against Agoda, Agoda International USA Inc., and the Priceline Group Inc. See generally Compl. In his Complaint, Plaintiff asserts a single cause of action under the Telephone Consumer Protection Act of 1991 ("TCPA"),
II. LEGAL STANDARD
"A party is entitled to summary judgment if the 'movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.' " City of Pomona v. SQM N. Am. Corp. ,
III. DISCUSSION
In its motion for summary judgment, Agoda argues that the Court should grant summary judgement on Phan's sole claim, for violation of the TCPA, for three reasons: (1) Phan provided the required level of consent under the TCPA because the text messages he received did not contain advertising and were not telemarketing; (2) Phan waived his rights to assert his TCPA claim by agreeing to Agoda's Terms of Use and Privacy Policy and by continuing to make bookings with Agoda after receiving the allegedly unlawful text messages; and (3) Phan agreed to a Singapore choice of law and venue clause in the Terms of Use. See Mot. at 3-4. As discussed below, the Court agrees with Agoda's first argument, and thus does not address Agoda's second and third arguments.
A. Requirements Under the TCPA
The TCPA makes it "unlawful for any person within the United States ... (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system ... (iii) to any telephone number assigned to a ... cellular telephone service."
As to the third element, consent is an affirmative defense on which the defendant bears the burden of proof. See Van Patten v. Vertical Fitness Grp., LLC ,
If the text message does not contain advertising and is not telemarketing, the requirements for prior express consent are less stringent. A consumer must only "knowingly" agree to receive such messages by providing his phone number for the reasons served by the message (i.e. , to transact the business contemplated when the recipient provided his number). See Van Patten ,
Finally, if the text message serves a "dual purpose"-that is, includes both advertising/telemarketing and merely informational or transactional communications-the messages are subject to the heightened express written consent requirements. See In the Matter of Rules and Regulations Implementing the TCPA of 1991 , Report and Order,
B. Application of the TCPA to the Text Messages Received by Phan
Though a claim under the TCPA has three elements, Agoda does not dispute that Phan satisfies the first two elements of the TCPA claim-that Agoda sent text messages to Phan's cellular phone using an automatic telephone dialing system. See generally Mot. (failing to challenge these elements). Instead, Agoda's motion for summary judgment argues that it wins on the third element, because it has successfully established an affirmative defense of consent. See Reply at 3, ECF 46 ("[T]he parties' only disagreement" is "whether or not the text messages that Plaintiff received can be classified as telemarketing or advertising under the TCPA ... such that Plaintiff's actions constituted sufficient consent."); Opp. at 1 ("[T]he only element at issue ... is ... whether Agoda's messages were sent without Plaintiff's consent."). The question of whether Phan consented turns solely on whether the text messages here contained advertising or constituted telemarketing. Indeed, Phan concedes that his claim fails if the text messages are neither advertising nor telemarketing. See Opp. at 24 ("Plaintiff agrees with the notion that, if the at-issue messages do not constitute advertising or telemarketing, they do not violate the TCPA.").
Agoda argues in its motion that the text messages were neither advertising nor telemarketing, but instead were "merely transactional" because they served only two purposes: (1) to confirm "that [Phan's] bookings were reserved with the third party hotel"; and (2) to direct Phan to the app "to locate and modify the booking prior to the completion of [his] stay." Mot. at 11. As to the latter purpose, Agoda argues that directing Phan to the app so he could modify his booking was merely transactional because the business transaction between Agoda and Phan did not conclude until Phan completed his stay at the hotels he booked through Agoda. Id. at 14. Because the transaction was ongoing at the time the text messages were sent, the argument goes, the link to the app was directed at completing the ongoing transaction, as opposed to marketing a separate product. Id. at 13-14 (citing Aderhold v. car2go N.A., LLC ("Aderhold II "), 668 Fed. App'x 795, 796 (9th Cir. 2016) ). For the same reasons, the inclusion of the hyperlink to the app alone does not transform these transactional messages into advertising. See id. at 12.
Phan, by contrast, argues that the messages were advertising or telemarketing, and not merely transactional, because the business transaction was completed at the time of booking, rendering the app-download link "superfluous." Opp. at 18; see *1263Opp. at 22 ("Plaintiff's bookings ... were complete as of the date he received his messages."). Moreover, Phan asserts, the messages "were sent specifically to encourage the use of the app" and "the app was specifically designed to allow message recipients to undertake transactions having nothing to do with the reservation that was being confirmed by the text messages themselves." Id. at 20. As such, regardless of the partially confirmatory nature of the text messages, the link to the app served to advertise or market the commercial availability of a separate Agoda product. See Opp. at 3.
In making their arguments, both parties analogize to and distinguish manifold cases in this Circuit and others. A review of this case law is instructive here.
In Aderhold II , the Ninth Circuit affirmed the district court's ruling that the text message at issue was not "telemarketing."
Importantly, the Ninth Circuit followed a Federal Communications Commission's determination that messages "whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements." Id. (quoting In re Rules & Regs. Implementing the Tel. Consum. Prot. Act of 1991 ("In re Rules "),
Using the same rationale, several district courts have held that messages or calls were not advertising or telemarketing because they pertained to ongoing transactions. In Wick v. Twilio Inc. , the plaintiff provided his personal information, including his telephone number, in the course of ordering a free sample on a website, but abandoned the order before completing it. No. C16-00914RSL,
Similarly, in Daniel v. Five Stars Loyalty, Inc. , the plaintiff signed up for a Five Points rewards program and received a text message instructing him to "reply with [his] email to finish registering and get free pts!" No. 15-CV-03546-WHO,
The court in Mackinnon v. Hof's Hut Restaurants, Inc. came to the same conclusion, albeit in a somewhat different scenario. No. 2:17-cv-01456-JAM-DB,
Other district courts have applied the TCPA to hold that certain calls and messages did constitute advertising or telemarketing. In Pedro-Salcedo v. Haagen-Dazs Shoppe Co., Inc. , the plaintiff allegedly enrolled in store in the defendant's rewards program and later that day received a text message stating, "Thank you for joining Häagen-Dazs Rewards! Download our app here: [link]." No. 5:17-CV-03504-EJD,
Similarly in Herrick v. QLess, Inc. , the Court held that two messages related to plaintiffs' wait times at certain establishments were advertisements.
In light of this case law and the requirements of the TCPA, this Court holds that the text messages Agoda sent to Phan were neither advertising nor telemarketing.
Both the context and the content of the messages dictate this result. As to the context, these messages were sent as part of an ongoing business transaction between Agoda and Phan. Phan used Agoda's services to book a travel itinerary online. Up until the time he finished his travel, he could cancel that booking or otherwise modify it through Agoda. Kelts Decl., Ex. 2 at 31; Rattanasrimata Decl. ¶¶ 9-10. As such, his transactional relationship with Agoda as to each booking continued through the time when he completed his travel. This scenario is directly comparable to Mackinnon , where the restaurant reservation was booked, but was not completed until the plaintiff ate dinner at the restaurant. Even assuming Phan paid for his booking on Agoda's website at the time of booking (as opposed to at the time of travel), this fact does not change the Court's conclusion. Phan contracted with Agoda for the provision of travel accommodations; Agoda's obligations were only completed by its successfully providing those accommodations to Phan at the time of Phan's travel.
The content of the messages reinforces this conclusion. The text messages read: "Good news! Your Agoda booking [number] is confirmed. Manage your booking with our free app http://app-agoda.com/GetTheApp." Compl. ¶ 21; Kelts Decl., Ex. 2 at 14. The plain language of the text messages is limited to (1) confirming the booking (a purpose no court cited by Phan has found constitutes advertising or telemarketing); and (2) encouraging Phan to "manage [his] booking" via the app. See also Zelenski Decl., Ex. 2 at 10. These two purposes directly related to Phan's transaction with Agoda.
The Court recognizes that this scenario is not directly comparable to those in Aderhold, Wick , and Daniel , where the plaintiffs each had to take an additional step before their agreements with the defendants were final. However, the focus of each of these cases was on whether the text messages were directly germane to the transaction. See Wick ,
Agoda's inclusion of the link to the app does not change this analysis. Nothing in the context or content of the messages indicates that the purpose of the messages was to "encourag[e] the purchase ... of ... property, goods, or services," as would be necessary for it to constitute telemarketing.
And the inclusion of the link to the app is not enough to warrant holding that these messages were advertising under the TCPA. Though the app may fairly be considered a product or service of Agoda, the messages simply cannot be said to advertise the commercial availability of this product or service under the law. The app is readily analogized to Agoda's website, as the two platforms have substantially similar processes for booking travel and most (if not all) of the same functions. See Kelts Decl., Ex. 2 at 28-30. The court in Aderhold I rejected the argument that inclusion of a link to a website that contained promotions was sufficient to render the messages advertising or telemarketing.
For these reasons, the Court holds that the messages at issue here were neither advertising nor telemarketing as defined by the TCPA. As such, Agoda needed only Phan's express consent prior to sending the messages. There is no dispute that Agoda received such consent because Plaintiff voluntarily provided his phone number and agreed to Agoda's Terms of Use and Privacy Policy, which made clear that such messages would be sent. See Aderhold II , 668 Fed. App'x at 796 ("The [FCC] has determined that 'persons who knowingly release their phone numbers have in effect given their invitation or permission *1267to be called at the number which they have given, absent instructions to the contrary.' " (quoting In re Implementing the Tel. Consumer Prot. Act of 1991 , Report and Order,
As such, based on the undisputed facts in the record, the messages were neither advertising nor telemarketing and Agoda received prior express consent from Phan. Agoda has thus successfully demonstrated that it is entitled to judgment as a matter of law on the affirmative defense of consent. See City of Pomona ,
IV. ORDER
For the foregoing reasons, Agoda's motion for summary judgment is GRANTED on its only claim, for violation of the TCPA.
IT IS SO ORDERED.
The facts relevant to this motion are undisputed, except as otherwise noted.
Though the Ninth Circuit discussed only telemarketing, the district court necessarily held that the text message was neither advertising nor telemarketing, because it held that it did not need to determine whether the plaintiff had provided the express written consent necessary for advertising or telemarketing texts. See Aderhold v. Car2go N.A., LLC (Aderhold I ), No. C13-489-RAJ,
Because the Court concludes that the messages did not have any marketing or advertising component, the dual purpose doctrine is inapposite.
In his opposition, Phan requested that he be given the opportunity to complete certain discovery related to the purpose of the messages if the Court were inclined to rule that the messages were neither advertising nor telemarketing. See Opp. at 4-5, 13-15. At the hearing on the motion, Phan conceded that he had conducted such discovery prior to the hearing, and he withdrew his request.