TCPAWorld remains a dangerous place for people trying to communicate with their customers using text messages. This is true even at a time when P2P SMS are more and more appreciated as a privileged contact channel.
In Greiner v. Cadillac Accounts Receivable Management., Case No.2: 19-cv-12479, 2020 US Dist. LEXIS 234221 (ED Mich. November 9, 2020), for example, a defendant has just been denied summary judgment – that is, the case is referred to a jury – in a case where the defendant claimed have sent the texts in question manually.
The defendant submitted three apparently conclusive statements from witnesses claiming that the disputed texts – debt collection messages – were sent manually. However, the statements did not explain what “manual” meant and apparently only stated that the messages were passed manually and stopped. The court held that the allegation of texting in this context was only a legal conclusion and dismissed the evidence out of hand. So the defendant loses.
It is not clear whether the defendant would have won the case had he presented appropriate evidence, but… probably.
Add salt to the wound here – this case started out as a small claims matter. Defendant sent him back to federal court – spent time and money bringing a motion for summary judgment.
To a pro.
Greiner has some take out. First, defense lawyers must submit appropriate evidence. And its quality, not quantity. These people submitted three statements, but none of them addressed the heart of the matter: What does “manual” mean? They probably could have won the case with just one statement, correctly worded and substantiated. Second, the risk remains high in cases involving text messages. Even though the messages were sent “manually” and were clearly aimed at collecting a debt – that is, probably tailored to specific consumers and not mass – the court still sent the matter back to a jury for review. ‘he slices. The risk remains with real people. Be careful and ask for consent.
© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume X, number 350