Rogers v. Postmates Inc.

Telephone Consumer Protection Act violations

Northern District of California

U.S. Magistrate Judge Thomas S. Hixson

Albert Giang

Defense Lawyers: King & Spalding LLP, Albert Q. Giang, Arwen R. Johnson, Samuel C. Cortina; Mac Murray & Shuster LLP, Chris C. Wager, Lisa A. Messner; Carlson & Messer LLP, David J. Kaminski; Postmates Inc., Anna Berces, Julia Breyer

Plaintiffs' Lawyers: McGuire Law, P.C., Yevgeniy Y. Turin; Hedin Hall LLP, Frank S. Hedin

Last July, attorneys for Postmates Inc. persuaded a judge to dismiss a proposed class action that accused the company of violating the Telephone Consumer Protection Act by sending automated, unsolicited text messages to people across the country.

The lawsuit is by no means unique: in recent years, complaints with similar claims have increasingly become a fixture in California's legal landscape.

The original complaint alleged Postmates "transmitted or caused to be transmitted, by itself or through an intermediary or intermediaries, an automated text message offering its 'gig economy,' courier-connection services" to the plaintiff's number without his consent.

In court orders addressing both the original complaint and amended complaints later filed by the plaintiff, a specific intermediary -- marketing company Bird Dog Media LLC -- was identified as being the entity that directly sent text messages to the plaintiff and the proposed class.

Arwen Johnson

Identifying the third parties that stood between Postmates and the text messages that were allegedly sent on the company's behalf was one of the bigger challenges in the case, King & Spalding LLP partner Albert Q. Giang said in an interview.

But Giang believed the strategy also convinced the U.S. Magistrate Judge Thomas S. Hixson to dismiss the case. Rogers v. Postmates Inc, 19-CV05619 (N.D. Cal, filed Sept. 6, 2019).

"We were able to persuade the court that even with changing allegations ... Postmates was the furthest upstream and the most removed from the alleged conduct," Giang explained.

In his order, Hixson wrote, "Because Rogers fails to allege that Postmates controlled Bird Dog or the manner and means in which Bird Dog allegedly transmitted the unlawful text, he fails to plausibly allege that Bird Dog was acting as Postmates' agent. Thus, he has not plausibly alleged that Bird Dog had actual authority."

Giang was lead strategy counsel in the case, but he credits the win to "the overall team effort" between himself and King & Spalding partner Arwen R. Johnson, associate Samuel C. Cortina, as well as their co-counsel at Mac Murray & Shuster LLP.

Giang said Anna Berces and Julia Breyer, both senior counsel at Postmates, were also "indispensable" to the case.

The plaintiff was represented by attorneys at Hedin Hall LLP & McGuire Law, PC. Attorneys at the firms did not respond to requests for comment.

-- Jessica Mach