Plaintiff Can’t Allege Texts Were Telemarketing as FCC Defines It, Says Motion to Dismiss

To state a claim that financial research firm InvestorPlace violated the Telephone Consumer Protection Act by sending telemarketing text messages to recipients without their consent, plaintiff Courtney Hill must “plausibly” allege she received those text telemarketing messages, but she “fails to do so,” said InvestorPlace’s brief Wednesday (docket 5:23-cv-00111) in U.S. District Court for Western North Carolina in Statesville in support of its motion to dismiss Hill’s first amended complaint (see 2307130001).

The InvestorPlace text messages Hill allegedly received “bear no resemblance” to telemarketing, “as the FCC has defined it,” said the brief. Most of the messages invite Hill “to watch or attend a free seminar, or to read a free article,” it said. But it’s well-established that messages inviting recipients to review content for free don’t qualify as telemarketing because they aren’t sent “for the purpose of encouraging the purchase or rental of anything,” the brief said.

Hill also alleges she received a handful of messages from InvestorPlace “providing recommendations for trading cryptocurrencies,” said the brief. But those messages “provide InvestorPlace’s guidance on when to trade cryptocurrency “on the recipient’s own initiative rather than encouragement to purchase any product or service from InvestorPlace,” it said.

Hill’s first amended complaint doesn’t allege InvestorPlace “operates an exchange on which cryptocurrency can be traded,” said the brief. Hill can’t “in good faith make such allegations,” it said. She therefore “failed to plead an essential element of her sole claim for relief,” it said. The court should dismiss her complaint, it said.

Dismissal “is warranted here” because Hill doesn’t plausibly allege that InvestorPlace “sent her any telemarketing message,” said the brief. Hill’s conclusory first amended complaint “fails to allege facts sufficient to establish this essential element of her claim,” it said. The messages Hill cites in her complaint didn’t “on their face” encourage her buy anything from InvestorPlace, it said.

To the extent Hill is suggesting InvestorPlace’s “broader participation in commercial activity” can establish the required purpose of encouraging a commercial transaction under the applicable regulation, “she is wrong,” said the brief. Courts have “consistently rejected such bootstrapping,” it said. This court “should likewise reject” Hill’s argument here, it said.