TCPA Claim – Jurisdiction

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7^th Circuit Court of Appeals

Case Name: Matthew Warciak v. Subway Restaurants, Inc.,

Case No.: 19-1577

Officials: BAUER, EASTERBROOK, and ST. EVE, Circuit Judges

Focus: TCPA Claim – Jurisdiction

T-Mobile customers with qualifying plans can participate in a promotional service called “T-Mobile Tuesdays” which offers free items and discounts from various well-known stores. Messages are sent every Tuesday and customers who no longer wish to receive marketing communications may opt-out by contacting T-Mobile’s customer service. In September 2016, a T-Mobile user, Matthew Warciak, received this text message: This T-Mobile Tuesday, score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details: http://t-mo.co/2bGiBjS.

The text message came from T-Mobile and Warciak was not charged for this text. Warciak sued Subway claiming Subway engaged in a common law agency relationship with T-Mobile, and that Subway’s conduct violated the Telephone Consumer Protection Act (“TCPA”) and the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”). T-Mobile is not included in the lawsuit, per the arbitration agreement in its subscriber agreement.

Subway filed a 12(b)(6) Motion to Dismiss; the district court dismissed the TCPA claim and declined to exercise jurisdiction over the state law ICFA claim. The district court found the complaint lacked sufficient facts alleging Subway’s conduct to support Warciak’s claims of actual and apparent authority, specifically, control over the timing, content, or recipients of the text message. Further, the district court found that the wireless carrier exemption applied and therefore, no underlying TCPA violation exists. Warciak appeals this dismissal and seeks an opportunity to replead and be assigned a new judge. We find that the district court properly dismissed Warciak’s claim.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.