Albertsons Urges Dismissal of TCPA Class Action for Failure to State a Claim

in support of its motion to dismiss the plaintiff’s Feb. 8 Telephone Consumer Protection Act class action for failure to state a claim. Kamel alleges that Albertsons, “by means contrary” to the TCPA, contacted his cellphone number multiple times with telemarketing text messages using an automatic telephone dialing system (ATDS) even after he told the supermarket chain to stop contacting him (see 2402090007). But the defendant argues that Kamel’s complaint relies on “conclusory allegations” that his cellphone number is residential, that he’s the cellphone’s account holder and that he’s the regular user of the number, said its memorandum. “Such threadbare allegations lack the necessary factual underpinning to demonstrate the number’s residential use” and defeat Kamel’s residential phone number claim under the TCPA, it said. The plaintiff’s claim is “further undermined” by publicly available information, said the memorandum. The subject number is listed on a publicly accessible website and social media platform as the contact number for Kamel’s jewelry business, “indicating its use for business purposes and inviting public inquiries related to jewelry -- a blatant contradiction that the number is residential,” it said. Kamel’s Telemarketing Sales Rule claim likewise fails because he doesn’t allege he suffered the “requisite amount of damages to state a private right of action,” said the memorandum. The Telemarketing and Consumer Fraud and Abuse Prevention Act, the statute under which the TSR was promulgated, requires that a plaintiff plead at least $50,000 in actual damages to be entitled to a private right of action for violations of the TSR, it said. Kamel’s allegations also “belie an essential element of the claims” that he was contacted using an ATDS as defined under the TCPA, said the memorandum. Under binding 9th Circuit authority, to qualify as an ATDS, equipment “must randomly or sequentially generate telephone numbers to be dialed,” it said. Equipment that "merely dials numbers" obtained in a non-random, non-sequential way, such as when a plaintiff provides his number to a defendant, is not an ATDS, it said. Kamel admits that he received text messages from Albertsons only after he provided his number to an Albertsons cashier, “thus establishing that Albertsons did not contact him using an ATDS,” it said. Even if the court doesn’t dismiss Kamel’s complaint in its entirety, it should dismiss his requests for declaratory and injunctive relief, because he doesn’t allege “any continuing TCPA violations or the threat of future harm or otherwise allege that money damages are an inadequate remedy at law,” it said.