Plaintiff Gave Lead-Generation Agency Consent to Text Him, Says Motion to Dismiss

Defendant Apollo Interactive seeks an order dismissing plaintiff Eric Moorman’s Telephone Consumer Protection Act class action in its entirety and to compel Moorman’s claims to arbitration, said its motion Thursday (docket 8:23-cv-01533) in U.S. District Court for Middle Florida in Tampa. The court alternatively should stay the case pending the outcome of the arbitration, and should also strike or dismiss Moorman’s class allegations, said the motion.

Americans receive billions of spam text messages every year, and Moorman’s July 10 complaint alleges Apollo, a performance marketing and lead-generation agency in Los Angeles, is responsible for a “significant portion” of them (see 2307110063). Moorman contends he and his class members have no relationship or account with Apollo, that they never provided a phone number to Apollo, and that they never agreed for Apollo to send them any type of communication.

But Moorman “is precluded from pursuing his claims” in the Middle District of Florida “because of his agreement to submit his claims to binding arbitration,” said Apollo’s memorandum of law in support of its motion. Apollo’s website uses “lead forms” to collect data from consumers who express interest in being contacted about its products and services, it said.

Moorman visited the website Nov. 23 and filled out a consent form by entering his personal information, including his phone number, said the memorandum. Moorman “expressly acknowledged and agreed” to be bound by Apollo’s terms and conditions, including its binding arbitration provision, it said. In submitting his personal information in the consent form, Moorman “plainly waived any right to file a lawsuit,” it said. His claims are “indisputably covered under the express terms of the arbitration provision,” it said.

Notwithstanding that Moorman agreed to arbitrate any claim against Apollo, he brings his purported class action alleging three TCPA counts, said the memorandum. He complains about receiving text messages that informed him about deadlines to enroll in health insurance coverage in Florida, plus about the availability of licensed insurance agents in his area who could help him with his enrollments, it said.

Though Moorman gave Apollo his information and consented to be contacted, he now wants to convert the “goodwill communications” from Apollo “into an unprincipled cash windfall by invoking the TCPA,” said the memorandum. But his complaint “fails to satisfy the basic pleading requirements necessary to state a claim for violation” of the TCPA, it said.

The premise of Moorman’s claim is that he received several text messages but never consented to receiving them, said the memorandum. He pleaded his allegations “in a manner that is calculated to obscure,” it said. But he alleged “insufficient facts for his claims to cross the threshold of plausibility -- falling short of the ragged minimum necessary to survive this motion to dismiss,” it said.