Postmates TCPA Suit Dismissed

The Northern District of California dismissed a lawsuit against Postmates Thursday, finding that the plaintiff failed to establish that Postmates was vicariously liable for the conduct of a third party. Plaintiff Richard Rogers originally sued delivery app Postmates in 2019 in a class action under the Telephone Consumer Protection Act (TCPA) “after receiving an unsolicited text message on his cellular phone with a hyperlink directing him to a job board on Defendant Postmates, Inc.’s website.”

The complaint claimed that “in an effort to advertise its delivery service and encourage [Rogers] and other class members to sign-up to become delivery drivers, Postmates contracted with Bird Dog Media, LLC, one of its marketing agents, to promote its mobile application and driver opportunities to as many individuals as possible.” Rodgers claims that Postmates oversaw the website and Bird Dog’s campaign. The plaintiff asserts that the text constituted “‘advertising and ‘telemarketing’ material within the meaning of the TCPA.”

In Postmates’ motion to dismiss, it “does not challenge that the text constituted a communication in violation of the TCPA.” Rather, “it argues that Rogers fails to allege facts sufficient to show that Postmates is vicariously liable for Bird Dog violating the TCPA.”

The TCPA makes it unlawful for an individual within or outside of the U.S. “to make any call…using any automatic telephone dialing system [(‘ATDS’)] or an artificial or prerecorded voice to any telephone number.” An entity can either be directly or vicariously liable under the TCPA. The court stated that direct liability is not applicable for this case because both parties agree it was Bird Dog, not Postmates, that sent the text message. Therefore, Rogers must allege that Postmates is vicariously liable, which requires establishing actual authority, apparent authority and ratification.

The court held “Rogers does not allege that Postmates exercised the control over Bird Dog necessary to establish Bird Dog as Postmates’ agent.” It was alleged that Bird Dog “conducted” the campaign, but the plaintiff did not allege that Postmates “exercised any control over the ‘manner and means’ in which Bird Dog executed the campaign on its behalf.” As a result, he fails to adequately allege that Postmates actually controlled Bird Dog and that Bird Dog was acting on Postmates’ behalf.

The court also considered apparent authority; Rogers claimed the complaint “plausibly alleges liability based on apparent authority because it alleges that the text Bird Dog sent to him referenced Postmates by name…and that the link provided in the text message directed the visitor to Postmates’ webpage.” However, the court said in this case apparent authority “would need to be established by alleging that Postmates said or did something upon which Rogers relied. But Rogers ‘does not [plausibly] allege that he ‘reasonably relied…on any apparent authority with which [Postmates] allegedly cloaked’ [Bird Dog], the entity responsible for creating and sending the text messages.’” Roger points to the link in the text message to establish this authority, however, the court disagrees, stating that it is a public site that anyone can navigate to.

The court also considers ratification, whereby Rogers must show that Postmates ratified Bird Dog either by a “knowing acceptance of the benefit” or from “willful ignorance.” Rogers argued that Postmates “has enjoyed the benefits of the marketing campaign performed by Bird Dog, fully aware that particular individuals were arriving at its website as a result of receiving the messages sent on its behalf by Bird Dog.” However, the court stated that in order to establish ratification, the plaintiff must plausibly allege that “Postmates knew or should have known that Bird Dog was referring people through texts in violation of the TCPA for liability to attach under the TCPA”; yet, the court states that Rogers does not make this conclusory allegation.