Tainted Beef Definitely an Emergency, California Federal Court Rules

TCPA Connect

Prerecorded calls made to warn consumers about tainted beef qualified for the “emergency purposes” exemption to the Telephone Consumer Protection Act (TCPA), a California federal court recently ruled.

According to Derrick Brooks’ putative class action, The Kroger Co. violated the TCPA by making unauthorized marketing calls using a telephone dialing system. Brooks received his unwanted call on Dec. 7, 2018, he said.

Kroger moved to dismiss the action, relying on the emergency exception of the TCPA because the phone call warned consumers about salmonella-tainted beef and was related to consumers’ injury or death. Therefore, the calls were not made for a marketing purpose, Kroger told the court.

U.S. District Court Judge Anthony J. Battaglia of the Southern District of California granted the motion, expressing concern about the plaintiff’s misrepresentations in the complaint. Brooks purposely omitted details from customer complaint information found online to make Kroger’s calls seem nefarious, the court said.

For example, Brooks cited one consumer complaint as “Automated call from Kroger ….” In full, the actual consumer complaint read: “Automated call from Kroger requesting that you return ground beef that was purchased between August and September of 2018, due to the threat of salmonella. Stores would include Smith’s, Ralph’s, Baker’s and other Kroger stores.”

The plaintiff included another comment as “Call from Kroger stores ….” The full text of the comment stated: “Call from Kroger stores advising that we purchased ground beef between Aug 15 & sept 10, 2018. If you still have any in your freezer, be sure you return it back to the Kroger Store.”

Agreeing with Kroger that the quotes could be considered as evidence that it indeed called Brooks under the emergency exception, the court dismissed the complaint.

“The complaint makes only conclusory allegations that the calls were done for marketing purposes, and even goes so far as to misrepresent information to the Court in doing so,” Judge Battaglia wrote. “As such, the complaint fails to state that the calls were done for marketing purposes.”

The court also denied the plaintiff’s request for leave to amend his complaint.

“[T]here are no set of facts which would solve Plaintiff’s problem,” the court wrote. “Plaintiff’s theory of the emergency exception doctrine is that an individual must be in direct harm to justify a call. However, there is no statutory or legal justification to read the exception so narrowly. Here, Kroger had a bona fide emergency in its tainted and potentially life-threatening beef, and thus called potential consumers of that beef to warn them.”

To read the order in Brooks v. The Kroger Co., click here.

Why it matters: Troubled by the plaintiff’s misrepresentations about the comments of other consumers included in the complaint, the court granted the defendant’s motion to dismiss. It also rejected the argument that an individual must be in direct harm in order to trigger the emergency exception under the TCPA, finding no statutory or legal justification for such a narrow reading of the statute. Tainted and potentially life-threatening beef constituted a bona fide emergency, the court said. Further, while TCPA plaintiffs are often granted leave to amend, this case represents a rare occasion where an initial TCPA case was dismissed with prejudice and without leave to replead.