DLA Piper has achieved a victory for Sabre in a putative class action brought by a passenger of Hawaiian Airlines accusing the company of sending unsolicited text messages.
Judge Stephen V Wilson of the US District Court for the Central District of California ruled that the text message plaintiff Shaya Baird allegedly received was not actionable under the Telephone Consumer Protection Act (TCPA) because the plaintiff voluntarily provided her phone number.
Judge Wilson dismissed the lawsuit with prejudice, ruling that the plaintiff expressly consented to receiving a text from Sabre when she booked flights online for herself and her family on the Hawaiian Airlines website and entered her mobile phone number.
The court, after discussing in detail orders issued by the US Federal Communication Commission in 1992 and 2008 interpreting the ‘consent’ requirement, held that ‘[u]nder the FCC’s definition, it is undisputed that Baird “knowingly release[d]” her cell phone number to Hawaiian Airlines when she booked her tickets, and by doing so gave permission to be called at that number by an automated dialling machine’.
Plaintiffs have repeatedly argued that the TCPA requires explicit language informing consumers that when they provide a mobile phone number, that provision constitutes express consent to receive calls made by an autodialer. The first and last time this argument was accepted was in Mais v Gulf Coast Collection Bureau, Inc, a 2013 decision from the Southern District of Florida, raising widespread concerns that FCC interpretation of consent would be eroded by court decisions.
The Baird decision followed the FCC interpretation and should substantially resolve concerns that Mais could be a bellwether of change in the law. Indeed, Baird goes far in rendering Mais an outlier decision that, at most, applies only to its specific facts.
The DLA Piper team representing Sabre was led by Joshua Briones, Ana Tagvoryan and Esteban Morales in the firm’s Los Angeles office.