On October 29, 2015 David Weisberg, an attorney for Kristensen Weisberg, LLP, received the following text message on his mobile phone from Stripe that read “Thanks for saving your payment info! This number will be used to verify your identity at Registration and other sites using Stripe Checkout.” You can see a similar text message to the one Mr. Weisberg received below sent by Stripe.
So how did Mr. Weisberg receive a text message from Stripe? When purchasing something using Stripe’s payment system, a consumer can select the “Remember Me” option, which asks for a mobile phone number. You can see an example of one of Stripe’s payment pages with the “Remember Me” option selected below.
It’s not clear in the Stripe TCPA lawsuit if Mr.Weisberg was the one to enter his mobile phone number into Stripe’s payment system, or if his mobile phone number was entered by accident by someone else. Either way, Mr. Weisberg felt that Stripe had violated the Telephone Consumer Protection Act (TCPA) because he had never given Stripe consent to send text messages to his mobile phone through an automated telephone dialing system.
On February 3, 2016, David Weisberg filed a class action lawsuit against Stripe. In the lawsuit, he alleges the text message he received violated the Telephone Consumer Protection Act (TCPA), which states that a person must first give consent to receive text messages sent by an automatic telephone dialing system, before receiving any text messages. Mr. Weisberg was seeking the following in his TCPA lawsuit against Stripe:
- Compensation in the amount of $500 for each negligent Stripe text messaging violation of the TCPA.
- $1,500 for each knowing or willful Stripe text message violation of the TCPA.
- Injunctive relief prohibiting such conduct from Stripe in the future.
- Any other relief the court deems just and proper.
On July 25, 2016 a federal district court ruled that Stripe could not be liable in Mr. Weisberg’s TCPA class action lawsuit, which claimed Stripe violated the Telephone Consumer Protection Act (TCPA) by sending the above confirmation text message to individuals.
To get a better understanding of why this TCPA lawsuit against Stripe was dismissed, we reached out to notable TCPA attorney, and the attorney who represented Stripe in this case, Adam Bowser at Arent Fox LLP for his comments.
Below are Adam Bowser’s comments regarding the dismissal of the Stripe TCPA text messaging lawsuit. If you have additional questions about TCPA compliance, you can find Adam’s contact info on the Arent Fox website.
I was able to successfully argue on a motion to dismiss that the plaintiff’s allegations only supported the inference that the text message he received was reactive in nature and specifically targeted to the plaintiff, and not sent by an automated telephone dialing system. This decision should provide comfort to any brand that programmatically responds with text messages based on an individual consumer’s action. In fact, this recent TCPA decision would apply even if a text message was sent programmatically to the wrong mobile phone number.
Some examples of consumers receiving programmatic text messages based on an individual consumer’s actions are below.
- A consumer text messages a SMS keyword to an SMS short code in order to receive a text message response.
- A consumer submits a mobile phone number online in order to be sent a text message containing a mobile coupon.
- A consumer submits a mobile phone number online to receive a text message containing a link to download an app.
- A consumer submits a mobile phone number online to receive a text message that contains a pin number, as part of a two factor authentication login process.
The Court largely adopted my argument and held that “where a plaintiff’s own allegations suggest direct targeting that is inconsistent with the sort of random or sequential number generation required for an” autodialer, courts should “conclude that the allegations are insufficient to state a claim for relief under the TCPA.”
There is, in my view, a clear trend across the TCPA litigation landscape that courts are not going to reflexively assume a text message was sent by an automated telephone dialing system, and this is especially the case where the plaintiff himself is inducing the very text messages he later sues about.