COFFEY V. FAST EASY OFFER, LLC, ET AL.

Holding: The Ninth Circuit held that the plaintiff adequately pleaded that the defendants' calls and texts qualified as telephone solicitations under the Telephone Consumer Protection Act.
Standard: de novo review of motion to dismiss
Vote: Unanimous panel opinion reversing the district court.
Practical effect: The decision allows TCPA claims based on unsolicited communications that imply a sales pitch through context, even without explicit product mentions, to proceed past the motion to dismiss stage.

The Ninth Circuit reversed a district court dismissal of a class action alleging violations of the Telephone Consumer Protection Act. The panel held that unsolicited calls and texts soliciting real estate brokerage services qualify as telephone solicitations under the statute.

Background

Vicki Coffey, an Arizona resident on the national do-not-call registry, received calls and texts from Fast Easy Offer, LLC and Keller Williams Realty Phoenix. The defendants allegedly contacted her to solicit the purchase of real estate brokerage services or to buy her home. The district court dismissed the complaint, ruling the communications were not telephone solicitations because they did not explicitly encourage a purchase.

The court’s reasoning

The panel interpreted the Telephone Consumer Protection Act definition of telephone solicitation, which covers the initiation of a call for the purpose of encouraging the purchase of services. The court held that the relevant purpose is that of the initiation, not just the content of the message. Relying on Chesbro v. Best Buy Stores, L.P., the court found that explicit mention of goods or services is unnecessary if the context implies an encouragement to purchase. The court accepted Coffey’s allegations that one purpose of the messages was to solicit brokerage services, which satisfied the statutory definition.

Neither the statute nor the regulations require an explicit mention of a good, product, or service where the implication is clear from the context.

Chesbro v. Best Buy Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012)

What it means going forward

The decision allows TCPA claims based on unsolicited communications that imply a sales pitch through context, even without explicit product mentions, to proceed past the motion to dismiss stage.