On August 27, the Central District of California denied Hyundai Motor America, Inc.’s motion to dismiss a Telephone Consumer Protection Act (“TCPA”) class action complaint filed by plaintiff June Abe. In Abe v. Hyundai Motor America, Inc., the Court rejected Hyundai’s arguments that Abe failed to allege sufficient facts to support her claims that Hyundai directly sent the text messages to her and that an automatic telephone dialing system (“ATDS”) was used to send the text messages at issue.
Abe alleges that, in response to a promotion offering a $50 reward card, she registered to test drive a Hyundai vehicle but did not provide her phone number or consent to receive telemarketing calls from Hyundai. She then went to a Hyundai dealership and test drove a vehicle. Abe claims that shortly after her dealership visit, she began receiving promotional text messages regarding the purchase of a Hyundai vehicle. The text messages contained communications such as, “Hi Jun [sic]. Did you get a chance to go [sic] your car appraised? I’m here to get you a great deal on the Elantra you drove yesterday. Have a wonderful day 🙂 John at GG HYUNDAI” and “I hope all is well. It’s John again from GG HYUNDAI. How is everything going with your car shopping? Thanks, hope you are doing well :)[.]”
Hyundai filed a motion to dismiss alleging that “Abe present[ed] no factual allegations to suggest that it sent the text messages directly to her, or that the Garden Grove Dealership was acting as its agent.” Abe argued that after she provided her number to Hyundai’s agent at the dealership, Hyundai controlled and automated the text messages at issue “using software programs that have the ability to mimic the language a real individual would use.” The Court found that Abe plausibly alleged that Hyundai directly sent the text messages at issue or, in the alternative, the dealership was acting as Hyundai’s agent when the messages were sent.
Hyundai also moved to dismiss on the ground that Abe’s complaint did not contain sufficient allegations to state a plausible claim that an ATDS was used to send the messages. Hyundai argued the text messages at issue were based on Abe’s interaction at the dealership and “anything but random or impersonal.” Abe contended that the content of the text messages is not relevant at the motion to dismiss stage. The Court agreed and relied on the definition of ATDS in Marks to find that Abe’s allegations were sufficient to “plausibly fall under the definition of an ATDS.” Specifically, the Court looked at Abe’s allegations that Hyundai’s messages included opt-out instructions, that Hyundai used technology to make the messages appear as though they were sent by an actual human being, and that Hyundai used software and hardware that “have the capacity to store, produce, and dial random or sequential numbers, or to receive and store lists of telephone numbers and then to dial such numbers, en masse, in an automated fashion and without human intervention.”
This decision reflects the difficult terrain TCPA defendants face in the Ninth Circuit, especially when the definition of ATDS is at issue in a motion to dismiss.