Derek: Hello, everyone.
Derek Johnson with tatango.com.
I'm here with Joe Bowser from Innovista Law, home of the TCPA Defense Force.
And we're trying something new.
We're trying to do a TCPA case review today, where we're gonna actually discuss what is
happening in the court systems with TCPA cases.
So, hey Joe.
How are you doing?
Joe: Doing well, Derek.
How are you?
Derek: Good, man.
Good.
I know we've done a few videos together, so it's always good to see you.
Joe: Likewise.
Derek: Okay.
So, the first case we're gonna review today, and you can find many other cases on our YouTube
channel, is a TCPA text messaging case, which was Ricky R. Franklin vs. Express Text.
And Express Text is a SMS software provider, correct?
Joe: Correct.
That's right.
Derek: Okay.
Perfect.
So, I'm gonna review kind of some of the basics, and then I'm pretty sure you have even more
information, and then we can discuss how this case impacts text message marketers.
So, what I have written down here, and kind of what I've, you know, summarized from this
case is, there's this person named Ricky Franklin.
And he received 115 text messages between July 2015 and September 2016.
So, about a year or so, he's been receiving a lot of text messages.
It looks like the...So, Express Text was the SMS software provider.
But the client of Express Text, the people sending the text messages, was WorldWin Events.
And so they hired Express Text to, you know, be their software provider.
So in September 2016, Franklin, so the consumer, responded "Help" to one of those messages
and received a response directing him to call Express Text to opt out of the messages, so
giving him like, you know, when you text "Help" to a short code and then it responds back,
like, "If you need help..."
So instead of...
Joe: And that's what he did.
Derek: Okay.
So he texted "Help."
Now, it didn't come back with a WorldWin message, it came back with a Express Text message saying,
"Please contact Express Text to opt out," right?
Joe: That's what happened.
Right.
And he did make that call.
Derek: Okay.
So, yeah.
I have that here, Express Text employee received the call and confirmed that this person, this
consumer, Rickey Franklin, had been removed from the company's database.
Now, do we know that that actually happened?
Joe: That seems to be undisputed.
Derek: Okay, okay.
Joe: What happened after that is he began then having a conversation with the platform,
where he would text things like, "hi" and "is this a real person behind these texts...answering
these text messages."
So he continued the conversation after he was opted out.
Derek: Okay.
So he opted out, most likely through the...he was called into Express Text and said, "Hey,
opt me out," they opted him out.
And then for some reason, he started texting into the shortcode again, asked, like saying
like, "Hi," and, "Is this a real person answering these text messages?" and that's kind of when
then...So explain to me where the violation of the TCPA kind of fell or why he thought,
you know, there was a violation.
Joe: He thought all of the message he got...he received were in violation of the act.
So he didn't care whether it was the ones where he claims he had no idea why he got
them and then the ones after he opted out.
For him, all of them were unsolicited messages that violated the act and entitled him to
damages.
Derek: Okay.
So this is the 115 text messages.
This is not him texting in and saying, "Hello," or, "Is this a real person answering this
text?" and then he would get one back like a response.
He was saying 115 were, you know, a TCPA violation or all of them, just every single one?
Joe: Every single message.
Derek: Okay.
Now, so what was kind of, you know, what was the result of this?
Did WorldWin and Express Text...I guess he was suing the text message provider, not WorldWin,
right?
Joe: Right.
He only sued Express Text.
Derek: Okay.
Why would a consumer do that instead of suing WorldWin Events?
Joe: Well, so he was there pro se, which is to say without an attorney.
So there may have been any number of factors that led him to only sue Express Text.
He might think that WorldWin doesn't have the money to back up any settlement or judgment
he might get.
It might be hard to get WorldWin into that same court such that he'd have to have two
different lawsuits about the same texts.
So if you think Express Text can foot the bill as it were, you don't add necessarily
the company who actually sent the messages.
He may have had a hard time finding out how to even serve them with process, with the
complaint and the summons.
Derek: Okay.
Interesting.
Joe: So, you know, getting a lawsuit off the ground does have some complicating factors,
and he might not have been able to thread the needle to get both Express Text and WorldWin
in the same case, in the same court.
Derek: Okay.
Because usually, at least from my experience and watching these court cases, is usually
the consumer is suing the brand, because usually the brand, let's say, you know, in one of
our other TCPA reviews we're gonna be reviewing Kohl's.
You know, Kohl's I would assume has more assets than a software provider like Express Text.
Joe: I would expect.
Derek: So it's usual brand.
But in this one, it seems like WorldWin might have been a smaller company and Express Text,
you know, was easier to get a hold of.
So they went after, you know, we presume the company that he thought had the most, you
know, exposure.
Joe: Right.
And WorldWin might have been a lead generator.
That's hard to pin down.
So you don't know what the circumstances were that led him to choose Express Text.
I have litigated against Ricky Franklin before.
He's reasonably aggressive.
So that's why I'm assuming he had a hard time putting those two in the same case.
Derek: Okay.
So is this Ricky Franklin person, is he an attorney or is he just representing himself
as a non-attorney?
Joe: He represents himself as a non-attorney.
Derek: Oh, okay.
I didn't know you could do that.
Joe: Yeah.
Sure, sure.
Derek: Okay.
Joe: I think, I mean, the courts are open to everyone.
And he's free to represent himself pro se.
This is probably his 10th TCPA case.
So he is very familiar with the TCPA.
He has a number of phones, and he keeps good track of who calls and who texts him.
And so, it comes as no surprise to me personally that he filed this case.
Derek: Okay.
So this whole case comes down to he sued under the TCPA.
And the TCPA, if you win, could be between $500 and $1,500 per text message that is received,
right?
Joe: Correct.
Well, actually you don't even have to receive them.
You'd...so you get...the liability attaches to the initiation.
So there are cases that show that calls that you didn't receive are still violative of
the act because, you know, the misdeed essentially is to attempt the call, to initiate the call.
Derek: So if it's like even like if a spam blocker, you know, blocks the spam, you still,
even though you didn't get the message, you still actually could, you know, have a judgment
against the person that sent the spam?
Joe: Right.
There's not a ton of case on it, but yeah, it's an open debate.
Derek: Yeah.
Interesting.
So he was going, let's say, you know, in this case, it says 115 text messages.
So it'd be 115 times anywhere from $500 to $1,500?
Joe: Right.
Derek: Okay.
So that's a lot of money just for him, and then he might even want to create what is
called a class action lawsuit so he'd bring other people that feel they've been wronged,
and then...So this could have been an extremely big case?
Joe: It could have been not.
Now, what you can do is sue for your own injuries.
What you can't do as a non-attorney is bring a putative class action, because there, you
need competent class counsel.
And so, since he doesn't have a JD, he couldn't do that.
Now, that's not to say that the other plaintiffs' attorneys who watch TCPA cases closely weren't
thinking, "Ah, what do we have here?
Let me jump in and PIP Ricky to the class action case."
Derek: Okay.
So somebody helps him out essentially once there's some meat on the bone, I guess.
Joe: Or the TCPA claimants attorney would just push Ricky out and kind of take over
and say, "I'm representing the class," and Ricky is just a class member.
So you could get blood in the water...
Derek: Because you don't need his permission essentially, because you can find your other
people?
Joe: Oh, yeah.
There are plenty of TCPA cases where, you know, it's plaintiff one, and then a couple
weeks later, a couple days later, plaintiff two.
And then the plaintiffs' attorneys fight over who's the right lead counsel.
So you get that blood in the water and sometimes you can get a little fight from the sharks.
Derek: So what happened in this case?
Joe: At the trial level, the Express Text, the defendant, very quickly moved for summary
judgment.
And summary judgment is the procedural vehicle where you go to the court and you say, "Look,
all of the undisputed material facts show that we win as a matter of law."
So let's break that down a little bit.
Undisputed, meaning neither side has a real beef about what actually happened.
And then material facts mean the fact has to matter to the outcome.
So if it was cloudy on the day he got the text, that's not material to a TCPA case,
but the weather might matter to a traffic accident, where it depended whether it was
reasonable for you to slow down when it was raining or whatever.
So the weather is not material in some cases and material in others.
So you got to show that everybody agrees on what the key facts are, and the judge decides
what's key.
And then, if everybody's in agreement about what the undisputed facts are, does one side
win or lose as a matter of law?
Which is to say, there's nothing left for the jury to do.
So we don't need a trial because the judge decides the law and the jury decides the facts.
But if there no facts up in the air, I don't need a jury.
So, judge, here are the facts, you just figure it out.
Derek: So this is pre-jury, pre...like, you know, a "Law and Order" type, you know, what
people usually kind of see two sides arguing.
This is, you know, "Hey the facts are the facts, so there should automatically be a
ruling.
We don't need all the other stuff."
Joe: Exactly.
And so, but, you know, for everybody watching the video, a month...filing a summary judgment
motion a month after answering the complaint is very early.
Typically, discovery takes anywhere from four to five months on the very aggressive end,
to years on the reasonable to far end.
So when Express Text moved for summary judgment early in the case, it was an aggressive move
to try to just put this case out of its misery early.
Derek: And he wanted to win it, right?
Oh, no.
Express Text was the one that filed this summary judgment, right?
Or they...
Joe: Correct.
Derek: Okay.
So they thought this was so ridiculous and that it had no, you know, merit essentially,
that they said to the court, "Let's just decide it right now, you know, based on all the facts."
And they were confident enough that all the facts were leaning towards them, I guess.
Joe: Correct, right.
So they put in a c-level affidavit explaining how the Express Text platform works, and how
it would have been its customer who chose who, you know, who to send the messages to,
when to send the messages, what the content was gonna be, a typical platform versus sender
setup.
And so, since they were the platform, they explained to the judge, you know, "Your honor,
we don't do the kinds of things that the TCPA attaches to sender liability, right?
We just provide the underlying technology that a sender uses just like you and I might
use to make a phone call," right?
It doesn't look like an iPhone, but from someone who wants to send commercial text messages,
this is how the platform works.
But it still requires a high level of involvement of the user to decide who gets the messages,
what they say, when they're sent, and so on and so forth.
And that, under the law, is the sender.
And in response, Mr. Franklin said, "Well, I don't know anything about your Express Text
relationship with WorldWin.
I don't know how your platform works.
I hear what you're saying, but I can't rebut any of this."
And so, there's a procedure in federal law that allows the plaintiff to say, "Hold on
now, this summary judgment motion is being filed too early.
You need to give me a chance to go depose these people, get the underlying documents,
and engage in the kind of discovery that I'd need to test, you know, those propositions
that you're putting into evidence."
And the trial court was having none of it.
They said that the facts are undisputed, which is unsurprising because Mr. Franklin didn't
really have a chance to test them, and gave summary judgment to Express Text.
And Mr. Franklin appealed to the Seventh Circuit Court of Appeals, which is the appeals court
that covers that Chicago Federal District Court.
And just by way of background, the Chicago Federal District Court has one of the highest
TCPA caseloads in the country.
So, they see these every day, they get filed there every day, it is clogging their dockets.
And you can sense from some of the judges at least a level of exasperation at these
kinds of cases.
Some of them have merit, but plenty of them don't.
And so, when...You know, when these combination of professional plaintiffs with, you know,
not a clear path to victory come forward, it's not surprising to see a trial judge say,
"Okay, I've got a lot of these.
Let's get the wheat separated from the chaff, and get rid of the bad ones."
And so, I'm sensitive to the trial court's ruling in this one, but Mr. Franklin appealed
to the Seventh Circuit, and they briefed the issues about the extent to which Mr. Franklin
should have been given more discovery, on the one hand, and whether he should get discovery
on all of those messages that came after Express Text manually opted him out of the campaign.
And so, that's the decision that came out earlier this month, in March of 2018.
Derek: And then what was that?
Was it that he doesn't have that right?
Joe: The Supreme Court...Oh, sorry.
The Seventh Circuit reversed and said that he did have that right, that the trial court
granted summary judgment to Express Text too soon, that it was unfair essentially to the
plaintiff to not be given a chance to get the contract between Express Text and WorldWin
to figure out how the platform really works in practice, and kind of get under the hood
and test the representations that were before the court in the form of that affidavit that
supported the summary judgment motion.
So they said that the trial court, you know, the trial court jumped the gun, and Mr. Franklin
should get that discovery.
And then, of course, Express Test, assuming everything they said is true, they'll just
refile the same motion and say, "Even after discovery, Mr. Franklin's unearthed no information
that would suggest that we are the sender of the messages."
So I would imagine that this is a road bump rather than, you know, a real change in the
outcome of the case, assuming of course that Express Text was honest in the declaration
and nothing new comes out.
The important thing for us, for the bystanders of this case, and the folks just that track
TCPA developments in the courts, is what the Seventh Circuit concluded about his messages
that follow the manual opt out.
They called foul on Mr. Franklin's attempt to gin up more messages by texting "Hi" and,
"What's the weather?"
"Is there a real person behind these, you know, these answers."
The Seventh Circuit was unequivocal that he gave express consent to get answers or automated
messages, when he knowingly sent textual narrative text to a platform that he knew to be associated
with an auto-dialing type platform, where he did anything but text "Stop," right?
Like Express Text and the brand did what it was supposed to do.
They told people, "If you wanna stop getting these messages, text 'Stop'."
Four letters, like a stop sign.
It's easy, everyone can do it, you know, just do that.
Don't play games and try to, you know, go left, go right, shuck and jive.
Derek: So it seems like the TCPA is being a little more kind of, I guess, brand and
software friendly nowadays or they're starting to see a lot of these types of cases where
they're manufactured cases.
And it's not holding as much weight as it used to maybe when it was more...TCPA was
newer to people.
Joe: Well, unfortunately, there have been bad partial revocations in phone call cases.
But on the SMS space, I'm seeing courts take a much harder line for opt outs and revocations,
where, I agree with you in that sentiment.
So, I wouldn't put it "TCPA writ large," but...
Derek: Just for SMS.
Joe: For SMS, because you have, you know, you have the text, like you see what everybody
said, right?
It's recorded.
Everybody has got a log of what happened.
So the courts have a very clear understanding of who said what to who, and they see that
narrative, you know, go back and forth and it's much easier to call balls and strikes
there and say, "Look, you have a very easy opt-out mechanism.
The fact that you chose to avoid it means that you were not trying to exercise reasonable
opt-out methods, and were really just trying to gin up your TCPA damages."
Derek: And you have the record, you know, of the text message.
And now, you said that was kind of just, you know, basic is something to look for in a
software provider to make sure the records are kept.
I've heard some kind of crazy stories where, you know, after a year, the records are destroyed.
You know, it is a good example of why keeping records, even hypothetically, let's say, you
leave an SMS platform, go to another platform, you need to get all the records from the original
platform, you know, of all the messages in and out before you leave the platform.
Joe: Right, right.
Because consent is an affirmative defense, so it's on the burden of the sender or, you
know, whomever's making those calls or texts to prove consent.
So you can't just put in a declaration that says, "Oh, Well, you know, don't worry court.
We really did have their consent to send those messages," because then you're definitely
going to...Not definitely, but in all likelihood you're going to trial on that issue, and that's
not where you wanna be.
You wanna show that the, you know, the undisputed evidence shows that you had consent and the
TCPA has a four-year statute of limitations.
So that's the minimum that you want to keep that kind of...You know, that kind of consent
record for.
We've definitely heard folks say, "Well, I don't want to keep my call records because
that's gonna show how many people I called or sent texts to."
Well, bundled in those call records is the consent, typically.
So you don't wanna throw the baby out with the bathwater.
So if you're conducting your campaigns properly, you have every incentive to just keep the
data that you have and show consent.
And it also helps, in a related vein, make it more difficult for the plaintiffs to get
class certification.
Because if you can show that consent is a key issue that separates potential class members,
you create these individualized mini-trials and the courts aren't going to grant class
certification when they see that consent is an overriding issue in the case.
So the more evidence of consent that you have, the better for your defense strategy.
Because losing class certification is a key inflection point in any TCPA case.
Because then the plaintiffs' lawyers are, you know, rubbing their fingers together,
seeing the yachts.
Yeah.
And they're just off to settlement.
Derek: And just to be clear, so the 115 text messages, this Ricky Franklin thought they
were...Let's just call them unsolicited.
He didn't opt-in for these text messages.
Maybe, in that, I don't even know if it was decided or not.
Joe: It was.
Derek: Oh, it was.
Okay.
So...
Joe: And it was not.
It was not.
Derek: Oh, it was not.
Okay.
So let's hypothetically say that, you know, 115 text messages, these were unwanted.
Because I think what it brings up is a more interesting point is Express Text got themselves
out of a lawsuit.
Now, if these were solicited, unsolicited, whatever, it really doesn't matter because
Express Text, what they were telling the court was, "We don't belong in this lawsuit, in
this TCPA lawsuit, because we are not the sender."
Joe: Correct.
And that's the key verb, right?
You have to initiate or make or send the message.
Now, vicarious liability can stretch out who is the sender.
But the case law is pretty clear that if you don't control the questions of whether to
send the message, when to send the message, who gets the message, you know, in courts
and even the FCC waffle a little bit about the role someone can have in crafting the
content of the message.
But if you're not answering the "whether," the "when," and the "to whom" questions, you're,
in almost all cases, not the sender of the message.
And so that's what the TCPA really covers is, I am putting liability where it should
be, which is who chose to send that message.
Derek: And in this case, or most cases, when you're using a software provider, if you're
a brand like Kohl's or WorldWin, Car Pros, whatever it is, it's usually, you know, the
brand is going into the software provider.
They're logging in, they're selecting which, you know, subscribers or people that didn't
subscribe, whatever it is, you know, hopefully not, you know, to message.
They're creating the message.
They're clicking "Send," and the software provider, essentially, just sits there being
a software provider.
Joe: Right.
The analogy is if I start spamming people via email, you don't sue Microsoft just because
I'm using Outlook, right?
Like, I chose who to send the messages to.
Derek: It's your fault.
Joe: Yeah.
It's on me.
So that analogy is good so far as it goes.
And carriers, and fax broadcasters have explicit FCC exemptions such that if they exercise
no active control in the recipient list or the content of the message, they're exempt
under FCC rules from liability.
Derek: And that's why we don't see like, you know, instead of Ricky R. Franklin vs. AT&T,
if the message came through AT&T to his phone, you know, because they are a what, a common
carrier?
Joe: Yeah.
That's not the...They are a common carrier, but that's not the basis for their liability.
Derek: Because they're not sending the message, just like Express Text is not clicking "Send".
Joe: Right.
And so, early, after the passage of the TCPA, the carriers got together and said, you know,
"This is not on us.
We're a dumb pipe, you know, don't even drag us into these cases."
And so, the FCC, early in the TCPA's life, created this explicit exemption for carriers
because they didn't wanna get drug into lawsuits.
Now, back in the '90s, after the TCPA was passed, there was just a small smattering
of lawsuits.
It's nothing like the 4,000 to 5,000 cases a year volume of cases that we see today.
But in any event, the carriers got an explicit FCC exemption that contains those caveats,
like, you know, if AT&T and Verizon are collecting for their own bills that are unpaid, and they...
Derek: Yeah.
And they're clicking "Send".
Joe: ...and they're clicking "Send," then sure, they are the sender, right?
Derek: Okay.
Joe: But if you're acting as the proverbial dumb pipe, they're off the hook.
Derek: And that's what software providers right now, if they are brought into these
lawsuits, they are essentially saying that, "We are a dumb pipe, you know, and that this
is not, you know, our problem essentially."
Joe: Right.
And a number of platform providers, SMS platform providers, went to the FCC and said, "Hey,
FCC, you've given common carriers an exemption.
Later you gave so-called fax broadcasters the same exemption where, same deal.
If you're not choosing who gets the fax, what the fax says, when it goes out, etc., you're
off the hook.
You're just the broadcaster, and you're not liable."
The FCC granted that one.
So everybody thought that, you know, we'll just continue that pattern and the SMS industry
would get that same exemption.
For whatever reason, the FCC chose to do a kind of totality of the circumstances test
and rejected that petition to get that same exemption for SMS broadcasters and left it
to the courts to look at that totality of the circumstances.
But the courts have essentially crafted the same test, you just have to go through it
time after time to show that you really didn't for that client engage in those things that
would tip you over from broadcaster or sender, if you will, platform provider, over into
essentially functioning like the arm...the marketing arm of that brand.
Derek: Okay.
So this brings up, I think, two good points for text message marketers, just from my mind.
One is, let's say, like a marketing agency.
So let's say, a marketing agency, we'll just use Express Text in this example, is using
Express Text, it's hard to say.
And let's say, they represent, you know, what is it, WorldWin Events.
If the marketing agency is using the software provider, but they're crafting the messages,
they're coming up with the time to send it, but the brand is the one, you know, that is
in the message, but the agency is the one doing all the work, that might be a liability
for the agency.
They need to be just as cautious as the brand, or WorldWin.
Joe: Absolutely.
Right.
So if you're stepping in the shoes, and essentially acting for the benefit of the brand who's
hiring you to, you know, to serve in that marketing, you know, marketing campaign development
capacity, there can be exposure there under what lawyers call vicarious liability.
You know, the most lay example you can think of is when the UPS truck driver hits you,
you can sue both the truck driver and UPS, because the truck driver was obviously working
for UPS at the time, and they were acting as their agent, and UPS was the principal.
And under centuries-old common law, you can hold the so-called principal, UPS, liable
for the acts of the agent, the driver.
Derek: Everybody.
Joe: So there, so in this case, the marketing agency is like the driver, and the brand is
the UPS.
Derek: So for like a marketing agency, number one, when they're doing text message marketing
for a client, they need to be educated, you know, on TCPA compliance.
They need to be compliant.
And I always recommend going to a third party, you know, counsel to, you know, get that kind
of advice.
And then, on the other side is the brand, when they're hiring a marketing agency, they
should be checking the marketing agency to make sure they know, you know, TCPA compliance,
because, you know, they could get them in trouble as well.
Joe: Right.
Because what happens there, whenever you have a dispute between the brand on the one hand,
and the agency on the other, that's a side fight between the two of them.
The brand always says, "Oh, the agency agreed to defend and indemnify me."
And that's only as good as their resources to put behind the fight.
These TCPA cases can get expensive fast.
So if the agency is a small shop, and they don't have the insurance to back it up or
the financial resources, if there's no insurance available, to defend and indemnify the brand,
you're still on the hook because the plaintiff doesn't care what the side agreement was between
you about who's going to absorb any risks and liabilities associated with a campaign
gone wrong.
So both of those companies is most likely going to be defendants in the case.
And so it's...go ahead.
Derek: Okay.
And then...Oh, yeah.
I was gonna say the other component is, if all these software providers, well, software
providers are great, you know, we're a software provider.
It seems like in these cases, the TCPA cases, they're essentially always, or most of the
time, able to remove themselves from the case.
And saying, essentially saying, "Not my problem, it's the brand's or the agency," whoever's
clicking "Send," it's their problem.
So...Yeah.
Joe: Right.
Because it's like...I do think that the courts have settled on that test of where the platform
provider can stay in the safe zone, and not wear the sender hat, and where you start to
blur the lines, when you start to get involved in the clients' particular marketing campaigns.
And so, as long as the platform providers are, you know, acting as the dumb platform,
as it were, the dumb pipe, and just providing that, you know, brand facing functionality
to be able to manage and conduct their campaigns, and provide the interop between the brand
on the one hand and the wireless ecosystem on the other, you're fine.
You know, you're...
Derek: And I guess my point to that is, you know, always watch out who's giving you their
opinions.
Because I hear a lot of brands and marketing agencies, they'll go, "No, it's okay.
My text message marketing software provider told me it's okay."
Joe: Okay.
Derek: Now, the problem I think with that is that's great if the software provider is
also on the hook.
And if they, you know, don't have kind of this exemption, essentially that the courts
have kind of said that they have, so it does bring up another point.
If you're a brand or marketing agency, software providers can give you great advice, but I
would also get a third party's advice, which is like a TCPA attorney like you are.
Because, at the end of the day, you know, the Express Text or whoever it is a software
provider, essentially, they can remove themselves from the liability.
Joe: Right.
And I mean, there's two things going on there.
There's the moral hazard of the platform provider wanting to generate more business, right?
It's understandable, but there's a bit of a conflict there.
To the extent that their revenues are increased by their brands and their consumers sending
more messages, well, maybe you don't feel terribly comfortable about taking their advice.
And then there's the related issue of, do they really track the case law every day?
Right?
They might hear these things anecdotally at a conference or, you know, their lawyer told
them this three years ago.
Well, as we know, just last week, the DC Circuit issued, you know, a monumental decision, or
two weeks ago now, and, you know, in the TCPA context.
And you've got to stay up to speed on these things.
And, you know, it's not just appellate level decisions.
The case law varies, you know, somewhat dramatically based on where in the country you are.
So depending on, you know, whether you have a national footprint or if you have a heavy
consumer base, in the southeast for example, where the Eleventh Circuit has some fairly
TCPA plaintiff-friendly decisions as compared to other courts, like the Second Circuit that's
been much more business-friendly, you know, you just wanna be sensitive to these things.
And I don't know that a platform provider has the time or wherewithal to be focused
on these things on a regular basis.
Derek: Yeah.
They're a platform provider because they spend all their time building a platform, not tracking
TCPA law.
And I've talked to David, your partner, on this a lot.
And these videos are not supposed to replace legal advice.
I think they're more just to get people thinking about things, and asking the right questions
of their TCPA attorneys.
Joe: Absolutely.
Yeah, no, I mean, we put a ton of free content on our website because it's not a substitute
for nuanced, up-to-date analysis and advice that we couldn't possibly give here in this
kind of setting.
Because so often, the facts are critical in deciding which way you go and you wanna, you
know, you wanna talk to your client about what their risk tolerance is, and where they're
willing to go and...So, yeah.
Derek: [inaudible 00:32:27]
Joe: Well, I mean, I do think it's a good reminder to make sure that you're complying
with the CTA guidelines as it relates to including "Stop" as often as you need to in your campaigns
and making sure that you're selecting a platform provider like Tatango that takes those expectations
seriously.
Because, you know, I don't know that the outcome would have been the same if Express Text wasn't
including Stop instructions in those messages.
So...Right?
You wanna make sure that your platform provider's at least sensitive to those issues, because
the outcome could well have been different, had the court didn't have the record in front
of it to say, "Well, you were given clear instructions every time to text 'Stop' to
opt out, and when you didn't, everyone's going to assume that you were purposefully evading
a reasonable opt-out mechanism."
Derek: [inaudible 00:33:20]
Joe: Yeah, yeah.
Derek: [inaudible 00:33:24]
[00:33:24] [Silence]
[00:34:18]
Derek: ...you just don't understand how to opt out.
If you reply back, "Is this a real person answering these text messages," and then it
sends back a message saying, "Thanks.
We got your response," that's not really helpful to the consumer.
And they're gonna get frustrated, and as you get frustrated, that's when you go to an attorney
maybe you become a plaintiff, or a professional one.
So, I think it's a good lesson for SMS providers and the brands.
Make sure your software provider, no matter what you're texting in, and how you're interacting
with the system, there's always those instructions in there.
Because a frustrated consumer is just something no one wants to deal with.
Joe: Exactly.
Right, professional plaintiff or not, you want everyone to have a good experience, right?
The professional plaintiff is never gonna have a good experience, unless they have a
successful case.
We can't really guard against every one of those, but from, you know, a brand management
perspective, you wanna make sure that everybody's getting the level of, you know, detail and
attention that you'd expect.
Derek: Awesome.
And you guys have a ton of resources on your website.
What's your website, so people can go and download those resources?
Joe: Sure.
It's tcpadefenseforce.com.
tcpadefenseforce.com.
Derek: And it's a great website, lot of resources, and the blog is amazing.
You guys, we think we're kind of up to date, you guys are ten times more up-to-date on
the TCPA stuff and every, you know, time something comes out, you're right on top of it.
So, highly suggest everybody signing up for the email alerts or RSS or whatever you got
to do.
Anyway, that's great.
So this was a TCPA case review for Ricky R. Franklin vs. Express Text.
We have Joe Bowser, TCPA attorney, and Derek Johnson from Tatango.
Thanks everyone.
Joe: Thanks, Derek.
I'll talk to you soon.
Thanks, everybody.
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