Judge allows text-spam class action to proceed against Google

May 18, 2012 by

A federal judge has rejected a request by Google to delay a potential class action lawsuit alleging that its social apps company Slide violated a consumer protection law by sending SMS messages without the recipient’s consent.

Google had asked U.S. District Court Judge Yvonne Gonzalez Rogers in Oakland, California to stay the lawsuit pending a decision by the Federal Communications Commission about how to interpret the Telephone Consumer Protection Act.  Judge Rogers said in a written opinion that delaying the lawsuit against Google was not appropriate.  “The court is not convinced that the FCC has agreed to issue a ruling, let alone issue a ruling on an expedited basis.”

The lawsuit — brought by Nicole Pimental and Jessica Franklin — alleges that Disco (Slide’s group messaging app) violates the Telephone Consumer Protection Act by using an automated dialing service to send SMS messages to  people without first obtaining their consent.  Disco allows individuals to send group texts to up to 99 people at one time.  Recipients can opt out, but can’t prevent the initial message from arriving.

The service also allegedly sends recipients an introductory ad informing them that they can avoid text-message charges by downloading an app.

Google earlier asked for the lawsuit to be dismissed because Slide’s app was not covered by the statute on the grounds that the app doesn’t fit within the definition of an “automated dialing service.”  Google also argued that the messages were protected free speech.  Judge Rogers rejected both of those arguments in March.

Several weeks after that ruling, Google asked to delay the case pending an FCC review of how to apply the TCPA to text messaging.  That review came about after Skype’s GroupMe sought a ruling from regulators that its texting app shouldn’t be considered an automated dialing service.  GroupMe also argues that intermediaries such as itself should be able to rely on users’ statements that the people they text have consented to receiving messages.

But Ms. Pimental and Ms. Franklin successfully opposed that request, arguing that a delay would only provide Google with a “means of prolonging this litigation endlessly.”

Steve Larson
An experienced trial lawyer who handles both hourly and contingent fee cases, Steve has expertise in class actions, consumer cases, antitrust litigation, securities litigation, corporate disputes, intellectual property disputes, unfair competition claims, employment matters, and disputes involving family wealth. Steve regularly represents individuals and businesses in federal and state court and has obtained class-wide recovery in multiple class actions. A veteran practitioner, Steve's clients value his creative approach to resolving complex litigation matters.

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