On May 13, a federal court in the United States District Court for the Northern District of California granted a defendant’s motion to dismiss in a putative class action brought under the Telephone Consumer Protection Act. The Court dismissed the plaintiff’s claims that the defendant, an e-commerce provider that offers a texting platform to retailers, could be held liable for text messages sent by a retailer.

Plaintiff David Sheski filed a complaint on behalf of a putative nationwide class, contending that he received text messages in violation of the TCPA. Sheski purchased products from an online retailer utilizing a “Shopify Checkout.” Shopify markets itself as an e-commerce company that provides infrastructure and software for online retailers, including point-of-sale systems and checkout structures. These checkout structures include collection methods for customers’ personal identification information, including cellular telephone numbers. According to Shopify, its systems permit third–party retailers to send messages to consumers, but does not itself send text messages.

According to Sheski, the Shopify Checkout included an input field for customers to provide their telephone numbers for shipping updates, but did not disclose that the numbers would be used for text advertisements. Sheski alleged that he received two messages on his cell phone after he completed his purchase, both advertising Cyber Monday deals. Based on the text messages, Sheski alleged a putative class action against Shopify, contending that the e-commerce company was liable for TCPA violations.

The Court disagreed, finding that the complaint did not state a TCPA violation against Shopify directly or through vicarious liability. The Court found that the allegations in the complaint did not lead to the inference that Shopify, as the provider of a platform to a third party, sent the text messages directly. The Court further rejected Sheski’s allegations of vicarious liability, as the allegations in the complaint only permitted the Court to conclude that Shopify provided its vendors with “a suite of software options for retailers, who then determine which options to utilize.” This fell short of any allegation that Shopify controlled or had the right to control any text message campaigns.

The Court further trimmed the common law claims in the complaint, finding that Sheski did not allege a duty owed by Shopify or any resulting damages from the text messages to sustain a claim of negligence. In addition, the Court found that two text messages, sent to a consumer who provided his telephone number directly, did not rise to the level of annoying or harassing conduct.

This may not be the end of the road for Shopify, however, as the Court granted leave to amend. A copy of the decision is attached here.