Tampa Bay Rays Almost Strike Out on TCPA Class Action Dismissal Attempt

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On November 20, the Middle District of Florida largely allowed a putative Telephone Consumer Protection Act class action against the Tampa Bay Rays to continue, granting in part and denying in part the baseball team’s motion to dismiss plaintiff Chad Fernandez’s complaint.

Fernandez’s TCPA class claims are premised on text messages allegedly sent to him via an automatic telephone dialing system (“ATDS”) without his prior express consent. Initially filed on September 11, 2018, the lawsuit asserted claims for both negligent and willful violations of the TCPA premised on the Rays’ sending of four texts to Fernandez bitcoin data user list related to Opening Day and other various promotions. The text messages included announcements such as “Today only, purchase $12–lower level tix for STAR WARS Night on Sat. 5/25 when the Rays host the O’s at 4:10 pm … . Text STOP to cancel.” Fernandez brought his claims on behalf of “[a]ll persons within the United States who received an SMS text message, sent by or on behalf of Defendant or an affiliate, subsidiary, or agent of Defendant from the shortcode telephone number 420-86.”

The Rays moved to dismiss Fernandez’s complaint on multiple grounds. First, the team alleged that Fernandez provided prior express consent to text his cell number when he subscribed to the “Rays Alerts” program in March 2018 and could have easily canceled the subscription at any time. Judge Scriven didn’t swing at the Rays’ consent curveball, however, holding that “at this stage in the proceedings, the Court must accept Plaintiff’s allegations that he did not consent to such receipt as true.”

Second, the Rays also moved to dismiss based on Fernandez’s ability to bring the case as a class action. Arguing that there are no grounds to certify a class, the Rays stated that “not one shred” of evidence was sufficiently alleged to establish that anyone in the U.S. received one of the texts at issue without subscribing. Once again, however, the Court balked at the Rays’ argument, holding that it was premature to challenge Fernandez’s ability to bring a class action at the responsive pleading stage.

The Rays avoided a shut out on their motion, however, as the Court did agree with the team that Fernandez’s proposed class definition was overly broad. Accordingly, Judge Scriven directed Fernandez to narrow the class definition to those individuals who did not provide prior express written consent for the Rays to text them.

The decision, Fernandez v. Tampa Bay Rays Baseball Ltd., No 8:18-cv-02251 (M.D. Fla. Nov. 20, 2018), is one of many recent TCPA decisions emanating from the Eleventh Circuit. It remains to be seen if this case will make it to the World Series of TCPA decisions.