Cellphone Spam Class Action Down to a Thread

SAN FRANCISCO (CN) - A once-massive class action against cellphone spammers shrank further after a federal judge dismissed most claims against the last remaining defendant, mBlox.

Lead plaintiffs Edward Fields, Cathie O'Hanks, Erik Kristianson, Richard Parmentier, Kevin Brewster and Kristian Kunder originally sued Wise Media in October 2012 after receiving unsolicited text messages. The texts contained information about the company's subscription plans for flirting tips, horoscope updates, celebrity gossip and weight-loss advice.

Through a process known as "cramming," Wise Media enlisted the help of aggregators - including co-defendants Mobile Messenger Americas, mBlox Inc. and Motricity - to act as middlemen between itself and cellphone companies, according to the complaint.

The aggregators allegedly placed the charges on millions of cellphone bills and monitored complaints - for a piece of the revenue pie - regardless of whether users canceled or even responded to the texts at all.

After a federal receiver in Georgia asked for a stay against now-bankrupt Wise Media, the plaintiffs pressed ahead with their case against the aggregators. U.S. District Judge William Alsup initially refused to dismiss claims against the companies, but the action began to unravel last month when he found that the plethora of individual experiences made it impossible to certify the class.

Last week, the plaintiffs voluntarily dismissed all the aggregator defendants - leaving Brewster and Kristianson to fight against mBlox individually. On Monday, however, Alsup dismissed Brewster's claims of money had and received, conversion unjust enrichment, negligence and unfair competition.

"Brewster states that he paid the subscription fee that appeared on his cellphone bill and has not yet been refunded," Alsup wrote. "Moreover, he refers to a billing note as evidence that his mobile carrier remitted his payment to mBlox based on the short code associated with the text message he received. The billing note, however, clearly indicates that the carrier did not actually pay mBlox any money; due to a credit imbalance, mBlox paid the carrier $105.57."

Brewster cannot prevail on such common counts by simply referring to the specific amount of money that he lost, the court found.

"As there is no compelling evidence that his carrier ever remitted his payment to mBlox, mBlox's motion for summary judgment as to Brewster's claims for money had and received, unjust enrichment, and conversion is granted," Alsup wrote.

Brewster's "inability to decipher his cellphone bill" also doomed the negligence action, the court found. And neither Brewster nor Kristianson pursued unfair competition claims against mBlox in their second amended complaint.

There is an issue of fact as to whether mBlox violated the federal Telephone Consumer Protection Act with its alleged use of an automated dialer, the court found.

"Plaintiffs argue that the focus should be on whether mBlox's equipment has the capacity to dial numbers without human intervention," Alsup wrote.

One expert testified that mBlox's automated system can send millions of text messages per month with no human involvement whatsoever, he added.

"While plaintiffs have not alleged that mBlox uses a predictive dialer, mBlox's equipment functions similarly," the decision states. "Like predictive dialers, mBlox's equipment 'receives numbers from a computer database,' namely Wise Media's text-message platform, 'and then dials those numbers without human intervention."

He added: "In sum, there are genuine disputes of material fact regarding whether mBlox sent text messages to Kristianson and Brewster using an automatic telephone dialing system."

Alsup will hold a final pretrial conference on the single remaining count against mBlox on May 14.

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit