Derek: Hello, everyone, Derek Johnson with tatango.com.
Today, we have another TCPA case review with Joe Bowser from Innovista Law, home of the
TCPA Defense Force.
How are you doing Joe?
Joe: I'm doing well Derek.
How are you?
Derek: Good.
It's a little hard here on the west coast because we're gonna be talking about Buffalo
Wild Wings today and it's about 11:00 a.m. and I'm getting hungry.
So if I end this conversation short you know where I'm going.
Joe: Okay.
Derek: So this review is a TCPA text message marketing case review and this is for Meeks
versus Buffalo Wild Wings or BWW.
Joe: B-dub.
Derek: B-dub, okay, yeah.
We only have I think one here in Seattle so it's kind of newer on the west coast than
it is on the east coast.
So let me review kind of what led us to this case and then I'm gonna kick it off to you,
see what we missed and then see what, you know, actually happened and then how text
message marketers can learn from what happened.
So it looks like this person, plaintiff, is Marche Meeks, so that's their name, Marche
Meeks, alleges Buffalo Wild Wings misused his phone number, and this was back in July
of 2017.
And it looks like this guy went to a lot of different Buffalo Wild Wings, you know, I
don't have a problem with that, they serve some good wings, and it looks like he went,
and I've done this before at different restaurants, not at Buffalo Wild Wings, but he went into
a restaurant and I guess there was a line, maybe people waiting to be seated.
And he gave the hostess his wireless telephone number and to be like, "Hey, text me when,
you know, the table is ready."
Joe: That's right.
Derek: And I've seen this done in many different places and I think back in the day they used
to give those little disks and it would shake and vibrate and you'd run back to the restaurant,
and now I guess they're doing it via text message.
Joe: Sure.
Derek: And it looks like they were using, this wasn't like an app that Buffalo Wild
Wings built, they were using a app called "Nowwait" or sorry, "Nowait" app.
Joe: Nowait.
Derek: Nowait, that makes sense, so Nowait app.
So essentially, the text message, so he gave the phone number to the hostess, the person
at the front, and they essentially say, "We'll text you when you're table is ready."
But then when his table was ready or maybe before, I'm not really sure, Buffalo Wild
Wings, and I guess maybe the Nowait they sent some text messages to him that were more kind
of like marketing in nature.
Do I have that kind of correct?
Joe: Yeah.
So as I understand it, when he got that message saying, you know, "You're in line, we'll let
you know when your table is ready," embedded in that was a link in the first restaurant
to Nowait's platform so that you could download the app and use Nowait wherever it's available
in whatever restaurants participate.
And then in the second restaurant he got a link as part of the, you know, the reservation
process to download Yelp's app.
Derek: Okay.
So he went to...
Joe: So in both of those messages he got a link, in the first case to download Nowait's
app and in the second case to download Yelp's app.
Derek: Okay.
But he was going to, he received two different kinds of text messages essentially but he
was going to two different restaurant locations and putting his number in.
This wasn't like they started text messaging him after he left the restaurant.
This was in response to him signing up at each individual location to get the message
when the table was ready.
Joe: Right.
He seems to have been offended by the idea that there would be a hyperlink in the text.
Derek: Okay.
Because usually this would be considered like an informational message, right?
Joe: Correct.
Derek: Because this is, it's an information, it's "Hey, you're table is ready, you've requested
this message..." so that's what it is.
Does he have a problem with the fact that it has kind of gone from an informational
message to a marketing message?
Joe: That's the crux of it.
Derek: Okay.
And what is the difference?
Why, are there certain requirements for an informational message that maybe aren't there
for a marketing message and that's why he's able, or why he thinks he can sue?
Joe: Well, the level of content required under the TCPA does vary based on whether it's an
informational message or a marketing message and the marketing messages require that prior
express written consent that we've talked about that has a number of elements before
you can send an automated text with promotional content.
Derek: So that's like the, you know, reply "Yes" to...consent is a condition of purchase,
and, you know, you're gonna receive auto...
Joe: Consent is not a condition of purchase.
Derek: Oh yeah, consent is not...sorry, now I'm getting hungry.
So all those things in the text message which, when he gave his phone number for an informational
message at the front of the restaurant, they didn't have to, or they didn't think they
had to, because it was informational, disclose any of that info, it was just, this is gonna
be a one-off informational message?
Joe: Right.
Which he got, right, I mean he did.
He never said, "You didn't tell me when my table was ready."
He didn't allege that "You texted me about some completely unrelated thing."
It was just that embedded in there as part of Nowait's and Yelp's software platform that
the restaurant was using, that was embedded in that particular text message.
Derek: Okay.
So it would be kind of looked at as like a hybrid message, essentially.
It has a little bit of marketing, maybe "marketing," and I'm kind of putting quotes because, you
know, I guess what did they decide, because the intent to the message was informational.
But, yes, maybe there is a little bit of marketing component, maybe yes, they did stretch it
a little bit by linking even to like Yelp which has nothing to do with the whole reservation
kind of thing.
The Nowait thing I can understand, because it's like, "Hey, you download the app to have
a better experience when you're waiting."
But what did the court decide or how was this resolved?
Joe: Well, ultimately, the key question for the court was whether Yelp was actually the
sender or the initiator of the message, to use the term of art in the law itself.
So the law prohibits a person from initiating a text message under certain circumstances.
So the key analysis for the court was, "Who sent the message?
Was it Yelp or was it Buffalo Wild Wings?"
And the court took the FCC precedent that we have available to us, and we have the YouMail
and the TextMe cases on the one hand and the Glide case on the other and the key facts
that the courts now care about are who's deciding whether to send the message, who gets it,
and when do they get it.
Content is a mixed bag.
The FCC didn't find that that is, you know, outcome dispositive.
So in this case Yelp and Nowait, and Yelp owns Nowait, incidentally...
Derek: Okay, I know that.
Okay.
So that's where their little relationship was there.
Okay.
Joe: Exactly.
Yeah, why the user experience was different at each restaurant, I don't know, maybe a
question for Yelp, but who cares.
But what matters here is who decided whether to send the message, when to send it, and
who are you going to send it to.
And the court found this one to be a pretty easy case based on the plaintiff's own allegations
in the complaint.
So Yelp got out on a motion to dismiss, which is the very first inflection point in a lawsuit
to get somebody out of a case, which is often hard to do in a TCPA case.
Derek: So I said the case was Meeks versus Buffalo Wild Wings.
Was it Meeks versus Buffalo Wild Wings and Yelp originally?
Joe: Yes.
Derek: Okay.
And really, from a plaintiff's perspective you always want to kind of include everybody
that could have some kind of, you know, insurance policy or deep pockets that, and you'll try
to go after anybody.
And essentially they went after Buffalo Wild Wings and Yelp which also, if Nowait was its
own company I bet they would try to go after them as well.
Joe: Right.
Derek: They just...you lump everybody into there.
So the first thing that happened in that case was Yelp said, "Nope, not my problem," and
got themselves out.
Joe: Well, as a defense attorney, obviously, you'd hope that the plaintiff's attorney does
their homework and only brings claims against someone when those claims are viable and in
this case it illustrates that there really wasn't a viable claim against Buff, Yelp rather,
because it had no involvement in the key decision points about whether to send the message,
who gets it, and when to send it.
So you are right that it is a common page in the plaintiff's attorney's playbook to
sue everybody under the sun, but defense council would obviously take issue with that approach.
Derek: Okay.
So then it became Buffalo Wild Wings versus this person, so the...it used to be, you know,
this person versus these two companies, that company got removed.
So they went to court and got removed essentially.
So then what happened with the person versus Buffalo Wild Wings?
Joe: To be determined.
Derek: Okay.
Joe: So that part of the case is actually getting transferred a couple of hundred miles
south to the Central District of California in Los Angeles, where they other defendants
are based and where the operative transactions occurred.
So the plaintiff happens to be from the Los Angeles area so the case is actually getting
punted down to federal court in the Central District of California.
This particular decision came out of the northern district so this case was filed in Oakland.
So this judge is from Oakland and she punted the case because everybody else besides Yelp
is based in LA or thereabouts.
Derek: So what can we learn, you know, because obviously this will, you know, have some learnings
once actually this case is resolved?
It seems like, number one, it's always the person that, you know, meets those qualifications
of when they send it, you know, what they send, and all those things and Yelp in this
case did not meet any of those.
So they were, you know, removed from the case.
So what can SMS marketers kind of use that information to better their campaign or just
maybe that makes them aware that they are responsible if they're clicking "Send" on
the message even if they're like a marketing agency representing a brand.
Joe: Yeah.
I think that this case is important and illustrative for both the brands that use SMS platforms
and the platforms themselves, so that everybody is on the same page about who's doing what
and, you know, what those decisions mean for purposes of TCPA liability.
Now, it so happens that the plaintiff in this case, Mr. Meeks, kind of pled himself out
of court as it relates to Yelp because his allegations really didn't support a claim
against Yelp because he said Buffalo Wild Wings took all of the operative decisions.
But you can imagine a circumstance and there have been cases where the platform provider
has a more active role in the marketing campaign at issue.
So if a platform provider decides to bring upon him or herself some of the key decisions,
the outcome could very well be different, right?
You could have both companies be liable when you share in the responsibilities of deciding,
you know, when you send the message, who's gonna get it, what's it gonna say, things,
you know, the key decisions about how that's gonna go.
And so the court distinguished a case for example against Twilio where the court there
in the Wick versus Twilio case basically looked to the plaintiff's allegations on a motion
to dismiss, which again, on a motion to dismiss you have to take everything the plaintiff
says as true.
But because Twilio had certain language on its website about how it helps, you know,
tailor the, you know, customer's campaign and help them develop those marketing campaigns,
the plaintiff was able to seize on those public statements to create an issue of fact about
where the roles and responsibilities between Twilio on the one hand and its customers on
the other started and stopped.
So if you don't have a clear line between what the brand does on the one hand and what
the platform does on the other you might be both in the case for longer than one of you
wants to be.
Derek: Okay.
So it really comes down to as, you know, everybody involved in the messaging can be brought into
a case whether it's a platform provider like Tatango or this platform provider, you know,
is kind of the Yelp/Nowait app, I guess they would be the software provider...
Joe: That's right.
Derek: ...and the brand, but it really depends on, you know, who has control of those things
that you mentioned, you know, and that really can determine, you know, who's on the hook
for, you know, a TCPA violation.
Joe: Right, right.
You know, as we've talked about before, the FCC created exemptions for carriers and fax
broadcasters, but when it came time to, you know, bring those exemptions forward to SMS
platforms and application providers and the like, it kind of got cold feet and created
this totality of the circumstances test that courts have now distilled into the test that
we see in this Meeks case, where you look at those, you know, essentially those three
key questions of, you know, whether you send the message, who it's going to, and when you
send it, to determine who is the initiator of a given call under the TCPA.
So, again, this case just illustrates the point that everybody needs to come in with
eyes wide open about the roles and responsibilities of the respective parties so that if you're
absorbing those responsibilities, that's fine, you just have to understand the risks that
are associated with them.
Derek: So I guess this is good, I guess case law for software providers because it essentially
says, you know, "Hey, we are not the people that are clicking 'Send,' if they're not.
We are more of a software provider.
We're providing kind of a software that allows the customer to do all this."
That always kind of brings out the point for me, and the advice we always give is, you
know, "While it's nice to listen to your software provider, you know, I always recommend going
to a third party for legal counsel," because in this case, you know, hypothetically Nowait
and Yelp could have, you know, let's say Buffalo Wild Wings could have thought they were, you
know, doing compliance and helping them with those things but at the end of the day, you
know, Yelp and Nowait have just removed themselves and said, "Hey, not my problem, that's Buffalo
Wild Wings.
Even though they use our platform, we're not really involved because we are just a platform."
Joe: Right, it's like buying a car, a gun, whatever else, like, you are the user, you
decide how it's used, and as long as Remington isn't helping you aim the gun, you're the
one pulling the trigger.
Derek: Yup, exactly.
Joe: So liability rests there.
Derek: With the person making the action.
Joe: Right, right.
So the platform providers...and we do this when we represent platform companies.
We analogize to either carriers as the "dumb pipe," right, if the carrier is just facilitating
a transmission of the end user's choosing, they're not looking at the content, they're
not looking at the whys and wherefores of why a given text or call is placed, and in
those circumstances the carrier is not liable.
And if you spam somebody with your Microsoft Outlook account, no one thinks that we should
hold Microsoft liable just because I misused my Outlook account, right?
So too with the platform providers.
If you're just providing the tools to send the messages and the connections to the, you
know, the aggregators and the wireless carriers, well then you're not making any of the key
decisions, and compliance should rest with the brand who's making those decisions.
Derek: Yeah.
So essentially, a learning for a text message marketer is I, and even being a software provider
I hate saying this, but do not rely on your text message marketing software provider,
you know, for your compliance essentially.
You know, you are responsible for it as a brand.
Joe: Right, right.
It can get messy when the platform provider gets out of the platform provider shoes and
starts to look and feel like a marketing agency.
But you're absolutely right, I mean everybody should do their own homework and understand
where the lines are drawn, both in terms of responsibilities and thus liabilities.
Derek: Yup.
That's great.
Now, what about and I don't know if you can comment on this but what is your take on kind
of the mixing of transactional like one-off messages and then mixing in marketing type
messages into those transactional messages?
Is that something that you recommend SMS marketers don't do right now until this case gets resolved,
or how would you advise SMS marketers to kind of take that second component, which is the,
now that there's this case where, you know, it's informational but then they put a little
marketing, maybe "marketing," I don't know if it would be considered marketing, what's
kind of your take and what are you kind of advising clients right now?
Joe: Well, the dual use cases are always, you know, very fact-specific, so it's hard
to give a blanket answer to that but, you know, you really want to look at what is the
ultimate end goal and you follow the money.
You know, a case came out last week where a website was trolling Craigslist looking
for people selling their cars.
That court found that just because the company also sells cars didn't mean that a text message
to a particular Craiglist advertiser was necessarily a marketing message.
But there are cases on the other end, the Best Buy case as a common example, where Best
Buy had a rewards program and they were texting people that "Hey, you should come in and use
your points.
Your points for your Rewards Club are about to expire."
Derek: Yeah, makes sense.
Joe: The Ninth Circuit Court of Appeals, which covers Washington State, Oregon, California,
and some other big markets held that those text messages were dual use and therefore
had to comply with the higher level of consent requirements.
So the case law's not clear on this, and you really want to look at how that campaign is
architected to figure out are you crossing the line and ultimately what level of risk
are you willing to tolerate, because it's very hard for, you know, an audit and a compliance
attorney to give a clean bill of health for a mixed-use campaign unless you really get
into the weeds about how are we following the money, what is the user experience, and
what are the expected outcomes of that particular message.
In this case, obviously, Yelp and Nowait survived having that embedded link to download the
app and I think that's common with app providers when they push out the message that the user
chooses.
So, you know, there definitely is precedent for having that link to say, "Hey, Johnny
is on such and such app.
Johnny would like to invite you to use the app."
It's Johnny sending that message and most people aren't gonna sue Johnny, your friend
for sending you that link even if the app developer facilitated the sending of that
message.
But for the mixed use informational and promotional campaigns, the devil's in the details, and
ultimately it typically comes down to a risk tolerance that we work through with our clients.
Derek: So, and if it is mixed use, like let's say that has been established, you would...so
informational marketing, marketing has a higher threshold and, you know, it's much more complicated
to get an opt-in than it is just to send one informational message.
If it's mixed use you would have to go with the highest one which is the marketing.
Right?
Joe: Correct.
Derek: Okay, so you can't just like well, it's mixed use, half of it is informational
so we're just gonna focus on the informational opt-in type stuff.
They have to do it for the marketing side.
Joe: Right.
Because once you hit that tipping point into mixed use you then, because it has a marketing
or promotional element, you do need to satisfy that higher level of consent.
Derek: And so this customer right now they are suing Buffalo Wild Wings for essentially
advertising something that isn't even Buffalo Wild Wings, right?
Like they're advertising the Nowait, which kind of sucks for Buffalo Wild Wings because
they're like, "Oh, great, you guys, Yelp and Nowait just, you know, exited the thing."
But that was the advertisement, that's the thing that got them in trouble.
If it was just, you know, "Hey, your table is ready," there would be no issue here.
Joe: Well, he's suing them for unsolicited messages, period.
Derek: Okay.
So is he saying that it's because it's marketing messages, or he just thinks that, you know,
any message is a violation of his rights?
Joe: It's unclear from this particular opinion.
Derek: Okay.
Joe: And it's gonna be for that Central District of California judge to sort that out.
I can tell from the report here, the case, that Buffalo Wild Wings also filed a motion
based on his consent to get the messages so Buffalo Wild Wings has clearly teed up the
issue.
I just don't know how it's gonna shake out.
Derek: So this will be a really great case to kind of follow because there is a lot of
cases when you're sending, you know, an informational message but, you know, maybe you want to include
an ad at the bottom or maybe it just is advertising in nature, you know, the message.
And it's hard for some informational messages because, you know, like, well, it's telling
you that the table is ready but, you know, can you tell them that you should check out
the specials as well, you know, when your table is ready.
So it's not as cut-and-dry as people think where it's just like, you know, "Here's your
information," that's all.
Joe: Right.
Derek: Yeah.
There's a lot of instances I can think about.
Joe: And as you said, it's very unlikely that Buffalo Wild Wings would get anything if a
user downloads the Nowait app.
Derek: Yes.
So I think it kind of sucks for them, yeah.
Joe: Unless they're coming back and have a better experience at Buffalo Wild Wings, but,
obviously, it works with many, many restaurants who subscribe to that service.
Derek: Interesting.
So, okay, do you know how long it will be until we'll do a case review on kind of the
outcome of this, or what factors play into how long this could last for?
Joe: It will probably be at least several months, because the case has to get redocketed
in the new court.
The judge has to get assigned.
Presumably the parties will be asked to comply with some of the preliminary procedures with
the filing of any new case and then they'll refile the motions and let that judge who's
gonna hear the rest of the case resolve those motions.
So it'll probably be several months.
Derek: Okay.
Joe: And the Central District is very busy.
Derek: Okay.
Joe: So their turnaround time between even argument and decision is one of the longer
in the, you know, longer periods in the country.
Derek: Oh, interesting.
Okay.
And what happens here because I know it's anywhere from $500 to $1,500 per text message.
From reading this case, maybe he got two or three text messages, somewhere around that
range.
That's not enough to go through all this work.
So is he, would his kind of goal most likely to like certify like a class and essentially
say like, you know, "Hey, I've been harmed but that's only 1500 bucks, let's say, but
I know there's a lot of other people out there that also got messages.
They can join us."
Am I correct in terms of what we think his strategy would be, or why he's even wasting
his time on three text messages?
Joe: As it stands, yeah, the docket doesn't suggest that he's filing this as a class action.
So yes, in the abstract, you would expect him to have done that but that hasn't been
the case.
Derek: Okay, interesting.
Maybe he's just really angry about those couple of text messages.
Joe: Yeah.
Derek: Yeah, that sucks.
I feel bad for everybody involved obviously.
But it feels like Buffalo Wild Wings, you know, it would definitely be a violation of
the TCPA if they, you know, if you signed up to know when, and I see this all the time,
you signed up for, you know, to know when your table is gonna be ready.
They text message you an information message and then 3 days later, 10 days later they
send you a coupon.
Like, that is a blatant violation, that's where companies, it's a slam-dunk case against
the company, it's like, "Well, you did not get any marketing consent."
And we saw the same thing with like Jiffy Lube way, way back in the day.
People would call in, you know, and they would give their phone number when their car was
ready or something along those lines.
And then like a year later they took all those phone numbers and they sent them a mass coupon,
and it was like, okay, that's pretty obvious that you're violating the rules there.
Joe: Yeah, I find out a couple weeks ago that my barber recently switched marketing platform
companies, because I started getting these messages and I certainly didn't consent to
get them and I talked to the owner and let her know that she should probably ask some
hard questions about why...
Derek: And I think that's part of the problem too with our industry is most small businesses,
even large businesses like Jiffy Lube, I think they rely too heavily on what the software
is capable of doing and what the features and functionality allow them to do, rather
than looking at the law.
Because I know there's a lot of software providers that let you do really anything on their platform,
and their kind of response when, you know, these issues come up is, "Well, we're just
a platform.
We give you all these tools and you have to use the tools correctly."
And we see that with barbers and local pizza shops.
I see that all the time in my local community, and usually you see it on a grand scale with
these TCPA, you know, case reviews when they just had deeper packets usually.
But, yeah, it's a little scary and that's why I recommend everybody, you know, review
the videos we have online, just kind of get yourself educated enough that you don't make
stupid mistakes and you have enough information to go to, you know, legal counsel and go,
"Hey, I'm thinking about this.
This is my concern."
That's a much better conversation than just going to an attorney and saying, "I have no
clue what I'm doing."
You know, kind of a little background and educate yourself.
Joe: Right.
No, we've had clients from, you know, big to household names and you would be surprised
that even companies with very sophisticated compliance programs and risk management programs,
it's just something that's fallen through the cracks or they felt like they mastered
it in 2012, and then the world changes on them and they're not keeping up to date and
there's serious exposure.
Derek: And your firm, I'm not trying to make this an advertisement but your firm only does
TCPA, right?
Joe: We do related things around the telecom ecosystem.
So we started as telecom attorneys and evolved into TCPA defense attorneys.
So we've never represented a plaintiff for example, but...so we understand how the telecom
ecosystem works.
So we do represent carriers, but in the main, our core practice area is the TCPA.
But it's that telecom understanding that we think gives us a competitive edge in many
of our cases because we know the hard questions to ask and understand how the networks interoperate
and understand the call flows and so we're able to get under the expert's assumptions
and really figure out some of the key issues at issue in some of these cases.
Derek: It's confusing, the TCPA, and it's always changing where I've heard this before
from even small businesses, they go to their, you know, their general business counsel in
their town or even the large business they go to internal counsel and yes, maybe they
know how to review contract law, but the TCPA is something that I know you're busy all the
time, thank you for your time here.
A regular attorney just couldn't keep up with all the stuff that's happening and that's
why I do recommend and I think you do too is always go, you know, to either a law firm
that has a specific section of their law firm that focuses on these kind of laws, or go
to, you know, a firm like yours that only specializes in this type of thing.
Joe: Yeah.
The TCPA is the second most common type of litigation in federal court.
On the average day about five new opinions get issued from courts around the country.
In the last few weeks we've had three very important appellate court decisions come out.
So the law is constantly evolving and it's definitely not something that you would want
someone who keeps a, you know, a passing eye on to give you expert advice, so.
Derek: Yeah, because $500 to $1,500 per text message, that's a lot of money.
This is not little, you know, fines or lawsuits.
These are huge, and it's federal law, right?
This is not like, you know, local municipality or something.
This is federal law.
It's pretty serious.
Joe: No, no, no.
There is a well-armed militia, plaintiff's attorneys, who are just trolling around for
clients to bring new cases that are, you know, filed by the handful every day.
Derek: Okay.
Man, yeah, definitely things to take note in this and it will be interesting once this,
you know, does go to court or they settle and see kind of where this ends up, because
I think that'll have an impact and I think for now, you know, for at least what I'm thinking
is, you know, if you want to do an informational message keep it informational unless you have,
you know, unless you've really kind of thought through everything with outside legal counsel.
But it seems like in this case even I don't even know if the risk was worth the reward.
You know, just linking to a Yelp page, is that worth, you know, all this kind of hoopla.
Joe: Right.
Well, I mean, you know, for the...in the main, I'm sure that this kind of service improves
your customer experience and endears you to your customers and what the defense council
in this case may have been thinking was we don't have a class action.
Here's a chance to get some good law in our back pocket, defend our platform, defend our
business practices in a way where our exposure isn't the same as it if were a class action.
So they might have been happy to use this as a test case to get that good decision in
their back pocket so that people who may have been on the fence about using the platform
say, "Okay.
You know, it's been tested in court at least once, it's passed muster, let's go ahead and
I feel more comfortable now, you know, using that platform."
So if I'm Yelp, I'm feeling pretty good about this because I had a low-risk test case to
evaluate whether I'm really the sender of the messages through my platform.
Derek: And I guess you could even see, you know, let's say Yelp and Nowait has removed
themselves but maybe they're even helping Buffalo Wild Wings to prove out that their
system and their clients are all protected, you know, if this goes the way that they want
it to go.
Because it kind of sucks to leave, you know, as a software provider, leave the bag, you
know, with Buffalo Wild Wings because I think this hurts right now Yelp and Nowait, because,
yes, even though they got removed, their client is still stuck in this, you know, frustrating
lawsuit, which if I was a restaurant, I'd be like, "Ooh, I don't want to use Nowait
because look what happened to Buffalo Wild Wings."
So maybe there's even some, you know, they're hoping that it goes one way, and maybe there's
some, you know, relationship there that will kind of help Nowait eventually, you know,
with, "Hey, our client was exonerated plus we were exonerated, this is great case law,
and now we can go forward."
I didn't think about like working it from the backwards angle.
Joe: Sure, sure.
No, I think B-dub's has a very good consent argument so I envision that they get out of
this pretty quickly.
But, you know, it's America, you can't stop people from suing you, so like I wouldn't
put all of the sins on Yelp's lap.
I mean it's something that in the main, I'm sure improves the restaurant's perception
with their consumers and it should be a value add and you just kind of have to get over
these humps and, you know, test it in court and then once you've gone through a couple
cases, the plaintiff's attorneys will probably try to find another victim.
Derek: Yeah, easier stuff, like easier things to go after.
Okay.
Perfect.
So that was a TCPA text message marketing review.
Obviously, we'll have a follow-up and when that happens we'll link to it below.
Who knows how long it'll take or if they settle.
That was Meeks versus Buffalo Wild Wings, which originally was Meeks versus Buffalo
Wild Wings and Nowait and Yelp kind of combined there, but they were obviously thrown out
of that case by, obviously they threw themselves out.
Anything else I'm missing here?
It sounds like, you know, just a lot of kind of what we've heard but then also some kind
of unknowns here, so I think it's more just kind of a wait and see type case expect for
the platform.
It's been established time and time again that the platform is the platform and really
at the end of the day it's the person deciding when, who, and how they send the messages.
Joe: Yeah.
I think the safe and unsafe lanes for the platform provider and brand are established.
Derek: Okay.
Joe: Right, the whether, the when, and the to whom questions are the key questions and
if those are clearly divided between the brand and the platform provider, I think it's clear
where the expectation of liability should sit, but I agree that the Buffalo Wild Wing
test case really is having that embedded link that financially would redound to a third
party's benefit, here, Yelp's.
Derek: Okay.
Joe: So we'll see if they can get out of them.
Derek: Super interesting as always.
Well, again, my name is Derek Johnson with tatango.com.
We have Joe Bowser from Innovista law, home of the TCPA Defense Force.
What's your website, because you have a bunch of good resources?
Joe: You just nailed it, it's www.tcpadefenseforce.com, tcpadefenseforce.com.
Derek: Cool.
We'll link to it most likely in the description so you can get all that.
They have a great blog, great resources.
Joe: We did blog about this case.
I blogged about this case last week.
So we'll put a link in there and [inaudible 00:33:39] get a link in there.
Derek: Perfect.
That sounds good, always on top of it.
I like you guys.
That sounds good.
Well, again thanks everyone for tuning in and check back for the next TCPA case review.
Thanks.
Joe.
Thanks everybody.
Thanks Derek.
Derek: Thanks.
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