On September 15, the Court of Appeals of the State of Washington reversed a lower court’s decision in Aaland v. CRST Home Solutions, LLC (CRST), holding that unsolicited text messages sent to recruit independent contractors qualified as “commercial” messages under the state’s Commercial Electronic Mail Act (CEMA). The decision vastly expands the scope of the state statute.

Background

CRST, a logistics company, sent unsolicited text messages (like the one below) to potential independent contractors in Washington, including the plaintiff, as part of a recruitment drive:

Hi, I’m looking for a licensed plumber that may be interested in doing residential dishwasher installations for retailers like [ ] in the Seattle area. If you’d like more information, please respond with your email address (note: does not add you to any lists) or give me a call at this number. Thank you! – Deidre, recruiter for CRST

The plaintiff, seeking to represent a class of similarly affected individuals, filed a class action complaint against CRST alleging violations of CEMA and the Washington Consumer Protection Act.

Court’s Decision

The provision in CEMA at issue provides that “[n]o person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service.”

The court’s analysis centered on whether CRST’s text messages qualified as a “commercial electronic text message” under CEMA, defined as one sent to promote real property, goods, or services for sale or lease. The court emphasized a broad interpretation of “promote,” noting that it includes any communication contributing to the growth or prosperity of a business:

Here, CRST sent the text messages at issue to recruit the message recipients to join its network of independent contractors that CRST relies on to provide delivery and installation services that it sells to retailer and manufacturer clients. CRST markets the size and geographic reach of its independent contractor network and assesses its competitive advantage based on its ability to recruit quality contractors, including assessing recruiters’ performance based on the number of contractors that they onboard. The record thus establishes that CRST sent text messages to Aaland and class members to recruit contractors to contribute to its continued commercial success and growth. Accordingly, we hold that CRST’s text communication falls within the scope of a ‘commercial electronic text message’ as defined by the plain and unambiguous language of RCW 19.190.010(3).

Our Take

Given the court’s broad interpretation of commercial text message to encompass any message that contributes to the growth or prosperity of a business, companies texting Washington residents should carefully evaluate their communication strategies to ensure that any unsolicited messages do not inadvertently fall under the auspices of commercial communications. To avoid potential violations, businesses should consider obtaining express consent from recipients before sending recruitment or promotional messages. Additionally, implementing robust compliance programs and regularly reviewing communication practices can help mitigate legal risks associated with text communications.