Table for Two: Restaurant’s Text Did Not Violate TCPA

TCPA Connect

A text message related to a transaction initiated by the plaintiff could not violate the TCPA, a California federal court held in dismissing a putative class action.

When Steve Mackinnon called Lucille’s Smokehouse Bar-B-Que in Rocklin, California, to make a dinner reservation, he provided his cellphone number to the restaurant. Later the same day, the restaurant sent Mackinnon a text reading: “Welcome to Lucille’s Rocklin! Your reservation for 2 is set for 6:00 pm on 4/20/2017. View specials at”

Mackinnon filed a class action lawsuit, asserting that the text ran afoul of the TCPA. While conceding that he likely provided express consent to the restaurant to alert him when his dinner reservation was ready, the plaintiff contended that the inclusion of the link for dinner specials introduced advertising for which he did not consent in writing.

The court found otherwise and decided for the defense. The restaurant’s “text message confirming Plaintiff’s dinner reservation does not constitute telemarketing or advertising because it is informative and non-telemarketing in nature,” wrote U.S. District Judge John A. Mendez of the Eastern District of California. “Also, messages ‘whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender are not advertisements.’”

Lucille’s text to the plaintiff confirming his dinner reservation served only to confirm an expected commercial transaction—eating at the restaurant—that Mackinnon had initiated, the court said, and the phrase “view specials” did not convert the message into an advertisement.

“Plaintiff initiated the dining transaction by making a reservation at Defendant’s restaurant,” the court said. “The link to view specials (even if it worked, which is apparently debated by the parties) would have facilitated Plaintiff’s dining transaction by allowing him to view specials on his cellphone before sitting down for dinner.”

Since the court found that the text message was not an advertisement, written consent was not required for its receipt. Only Mackinnon’s express consent was necessary, and he provided that to the restaurant when he shared his cellphone number, the court said.

Finding that permitting the plaintiff leave to amend the action would be futile, Judge Mendez granted the restaurant’s motion to dismiss with prejudice.

To read the order in Mackinnon v. Hof’s Hut Restaurants, Inc., click here.

Why it matters: The court was not persuaded by the plaintiff’s argument that the inclusion of a link to view dinner specials transformed the restaurant’s text message from a simple confirmation of a dinner reservation into an advertisement. Instead, the court determined the text was simply a means to facilitate the dinner transaction initiated by the plaintiff, including a preview of the specials before he sat down to dinner. But if the text had gone beyond a simple link, then it is possible the decision could have gone another way.



pursuant to New York DR 2-101(f)

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