Carvana Denies That Its Text Messages Violated TCPA, Says Its Motion to Dismiss

Carvana seeks the Rule 12(b)(6) dismissal of plaintiff Michael Cribier’s Jan. 12 Telephone Consumer Protection Act class action because the complaint fails to state a claim upon which relief can be granted, said its motion Thursday (docket 3:24-cv-00094) ) in U.S. District Court for Southern California in San Diego.

Cribier’s complaint alleges that Carvana violated the TCPA by “bombarding” consumers’ mobile phones whose numbers are listed on the national do not call registry “with non-emergency advertising and marketing text messages without prior express written consent” (see 2401160003). He contends that Carvana sent him at least 10 promotional text messages, though his cellphone number was listed on the DNC registry since December 2004. He further alleges that Carvana “continuously and willingly” ignored his requests for the company to stop sending him text messages.

Cribier’s lawsuit is based on text messages that Carvana sent him in October 2021 and October 2022, said the defendant’s memorandum of points and authorities in support of its motion to dismiss. “As is apparent from the face of each text message” alleged in the complaint, the text messages “were intended for and expressly directed” to a Carvana customer named Ian, relating to transactions Ian initiated to sell his 2016 BMW 2 Series to the company and then to trade in his 2016 Fiat 500e in exchange for a BMW i3, it said.

Ian had apparently provided Cribier’s phone number to Carvana, instead of his own, so Cribier received those messages instead of Ian, said the memorandum. Whenever Cribier would ask the company to stop sending him messages, Ian “would take further action on the transactions to trigger further messages,” it said.

Cribier’s putative nationwide class action against Carvana “suffers from a fatal flaw,” said the memorandum. Section 227(c) of the TCPA applies only to telephone solicitations, “which are messages sent to encourage the recipient to purchase property, goods, or services from the sender,” it said. Section 227(c) only provides a private right of action to a person who has received more than one telephone solicitation within a year, it said.

The plaintiff hasn’t and can’t identify two or more telephone solicitations from Carvana “to satisfy this essential element of a claim,” said the memorandum. That’s because the four text messages Cribier received about how to opt out of text messages weren’t telephone solicitations since they didn’t encourage him to purchase, rent or invest in anything, it said.

The two text messages Cribier received from the defendant in October 2021 about how to move forward with the 2016 BMW 2 Series transactions weren’t telephone solicitations because they concerned “buying property from Ian, not Carvana,” said the memorandum. The four text messages Cribier received in October 2022 about how Ian can complete his trade-in request also weren’t telephone solicitations because the purpose of the messages wasn’t to advertise or telemarket, but instead to facilitate and complete an existing transaction, it said.

None of the text messages that Cribier received was a telephone solicitation because none of them asked him to buy, sell or invest in anything, but they were instead directed to a nonparty, Ian, said the memorandum. TCPA case law shows that the target of the caller’s encouragement must be the recipient of the call for there to be an improper purpose, it said. For all of these reasons, Cribier’s class action should be dismissed with prejudice, it said.