Edelsberg v. Vroom, Inc.

MARK EDELSBERG,individually and on behalf of all others similarly situated, Plaintiff(s), v. VROOM, INC., Defendant.

Case No. 16-cv-62734-GAYLES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

March 27, 2018

ORDER

THIS CAUSE comes before the Court on Defendant Vroom, Inc.'s ("Vroom") Motion for Summary Judgment (the "Motion") [ECF No. 76]. The Court has carefully considered the parties' briefs, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion shall be granted.

I. BACKGROUND

Plaintiff Mark Edelsberg ("Plaintiff" or "Edelsberg") brings this putative class action against Vroom for alleged violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. Edelsberg alleges that Vroom violated the TCPA by using an Automatic Telephone Dialing System ("ATDS") to send him an automated telemarketing text message. Vroom argues that its actions did not violate the TCPA because its text message was sent in direct response to an online classified advertisement posted by Edelsberg and, therefore, the text message did not constitute telemarketing. Vroom further argues that Edelsberg expressly consented to receiving the text message in question by including his cell phone number in the advertisement and directing interested buyers to contact him at that number for more information.

A. Vroom's Business Model and "Sell Your Car" Platform

Vroom is an online car retailer that buys, sells, and finances used vehicles over the Internet. [ECF No. 77, ¶ 1]. As a seller of used vehicles, Vroom necessarily needs to acquire used vehicles in order to maintain its inventory. [Id.] ¶ 2. Similarly, like any other used car retailer, Vroom has an interest in customers purchasing used vehicles from its inventory. [ECF No. 92, ¶¶ 1-2]. In order to source its inventory with vehicles purchased directly from individuals, Vroom launched an online appraisal tool (www.vroom.com/sell), referred to as the "Sell Your Car" or "SYC" platform, which allowed a used car owner to receive a cash offer for his or her vehicle after filling out Vroom's online appraisal form. [ECF No. 77, ¶¶ 4-6]. One of the ways Vroom identified individual sellers of used vehicles was through online classified advertisements on websites such as Craigslist (www.craigslist.com). [Id.] ¶ 8. Once Vroom identified a vehicle that appeared to meet its purchasing criteria, Vroom would send a text message to the seller expressing its interest in purchasing the advertised vehicle. [Id.] ¶ 9.

The text message sent by Vroom would include a unique and individualized link to its online appraisal form that was tied to the particular advertisement for which the text message was sent in response. [Id.] ¶ 10. Once an individual submitted the appraisal form, Vroom would review the provided information and then provide the text recipient with a cash offer voucher for the purchase of his or her vehicle. [Id.] ¶ 11. While an individual who accepted an offer could decide to structure the transaction as a trade-in and obtain a replacement vehicle from Vroom's inventory, Vroom's purchase of the seller's vehicle was not contingent on the seller obtaining a vehicle from Vroom. [Id.] ¶ 12; see also [ECF No. 90, ¶ 12].¹

B. Plaintiff Advertises a Toyota Prius for Sale on Craigslist

On or around July 12, 2016, Edelsberg posted a classified advertisement on Craigslist in an attempt to sell his mother's 2010 Toyota Prius. See Edelsberg Dep. Tr. [ECF No. 77-5] at 17:15-18, 18:18-25. Edelsberg's advertisement read as follows:

Toyota Prius 2010 - $9750 (Miami)

2010 Silver Toyota Prius 71,000 miles. One owner, well kept, good clean car.

Call XXX-XXX-6445² for more info

do NOT contact me with unsolicited services or offers

See [ECF No. 77-6]. Edelsberg understood that his advertisement could be viewed by anyone who visited Craigslist. See Edelsberg Dep. Tr. [ECF No. 77-5] at 28:4-10. Edelsberg was not concerned about including his cell phone number on the posting and understood that anyone with an Internet connection would be able to see his ad and phone number. [Id.] at 29:2-6, 26:5-7. In fact, Edelsberg included his number in the ad specifically so "people could contact [him] to purchase the car" or for "more info." [Id.] at 26:1, 95:1-17, 123:15-124:11.

Edelsberg's advertisement did not state that he did not want to be contacted by dealers or distant buyers. [Id.] at 62-63:18-17, 64:3-13, 127:1-24, 157:11-23, 201:6-9. Edelsberg was not opposed to selling his car to a business and admits that he would have had no problem selling his car to Vroom if they offered top dollar. [Id.] at 63:14-17, 65:1-4.

C. Vroom Sends Plaintiff a Text Message in Response to Plaintiff's Advertisement

On or around July 14, 2016, Vroom sent Edelsberg a single text message in response to Edelsberg's online advertisement. [ECF No. 77, ¶ 30]. Vroom had purchased Toyota Priuses from individual sellers in the past and was interested in purchasing Edelsberg's Toyota Prius.[Id.] at ¶¶ 28-29. Vroom's text message was sent to the cell phone number listed in Edelsberg's advertisement. [Id.] ¶ 31. The entirety of the text message that Vroom sent Edelsberg stated:

Hi Mark, I am Scott at Vroom. I saw you listed your Prius online & can make an offer but need you to fill out a few more details (takes 4 min) http://go.vroom.com/syc/6C9179. Text STOP to Quit

[Id.] ¶ 33; see also [ECF No. 77-7]. Vroom texted Edelsberg to express its interest in purchasing his advertised Prius and to obtain the additional information needed for Vroom to appraise the vehicle and provide Edelsberg with a cash offer. [Id.] ¶ 32. Had Edelsberg clicked on the link in the message, he would have been led to a Vroom webpage containing its vehicle appraisal form, prepopulated with information from Edelsberg's Craigslist ad, for Edelsberg to input additional information regarding his vehicle. [Id.] ¶ 34. In addition to the vehicle appraisal form, the webpage contained links to other parts of Vroom's website including its own used car inventory. See [ECF No 90, ¶ 15]. Had Edelsberg completed the vehicle appraisal form, Vroom would have sent him a cash offer voucher for the purchase of his vehicle. [Id.] at ¶ 18. The cash offer voucher would have included information regarding Vroom's inventory and the potential tax benefits for a consumer who traded-in their vehicle and purchased a used vehicle from Vroom in the same transaction. [Id.]. However, Edelsberg did not click on the link in the text message, view or complete the vehicle appraisal form, or otherwise engage with the "Sell Your Car" platform in any other way. See Edelsberg Dep. Tr. [ECF No. 77-5] at 54:14-20. Aside from the initial text message at issue, Vroom did not send Edelsberg any other text messages. [ECF No. 77, ¶ 37].

II. LEGAL STANDARD

Summary judgment, pursuant to Federal Rule of Civil Procedure 56(a), is appropriate only if the movant shows that there is "no genuine issue as to any material fact and that the movingparty is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

An issue is "genuine" when a reasonable trier of fact, viewing all of the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is "material" if, "under the applicable substantive law, it might affect the outcome of the case." Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004) (citations and internal quotation marks omitted). "Where the material facts are undisputed and all that remains are questions of law, summary judgment may be granted." Eternal Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health & Human Servs., 818 F.3d 1122, 1138 (11th Cir. 2016). The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. SEC v. Monterosso, 756 F.3d 1326, 1333 (11th Cir. 2014). However, to prevail on a motion for summary judgment, "the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf." Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015).

III. ANALYSIS

A. The TCPA's Legal Framework

The TCPA prohibits the use of an ATDS to "make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) . . . to any telephone number assigned to a . . . cellular telephone service." 47 U.S.C. § 227(b)(1)(A)(iii). Inaddition, the TCPA's regulations prohibit the use of an ATDS to make a call that constitutes telemarketing without obtaining the "prior express written consent" of the called party. See 47 C.F.R. § 64.1200(a)(2). A text message sent to a cellular phone "qualifies as a 'call'" under the TCPA. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016). An affirmative defense to a TCPA claim exists where calls are made with the prior express consent of the called party. Breslow v. Wells Fargo Bank, N.A., 857 F. Supp. 2d 1316, 1319 (S.D. Fla. 2012), aff'd, 755 F.3d 1265 (11th Cir. 2014); Lardner v. Diversified Consultants Inc., 17 F. Supp. 3d 1215, 1224 (S.D. Fla. 2014). A defendant is entitled to summary judgment under the TCPA when the undisputed facts show that the plaintiff expressly consented to receiving the call or text message in question. Lawrence v. Bayview Loan Servicing, LLC, 666 F. App'x 875, 879 (11th Cir. 2016); see also Murphy...