Earlier this month, a federal judge denied Yelp’s motion for summary judgment, which sought to defeat a proposed class action lawsuit against the online business locator and review website for violation of the Telephone Consumer Protection Act (“TCPA”).
The lawsuit, filed by lead plaintiff Jonathan Sapan of San Diego, CA, alleges Yelp violated the TCPA by making unauthorized telemarketing calls. Specifically, Sapan claims Yelp contacted him six times in 2017 on his home telephone number which was on the National Do Not Call Registry to sell him consultancy services that would improve his Yelp ratings. Yelp contends that it had an existing business relationship with Sapan’s Tierrasanta Pro Roofing and not only called the number to determine if it was still a correct contact number for the company, but to inquire whether Tierrasanta had interest in updating its Yelp page. Furthermore, Yelp argued that Sapan had been an active Yelp user and easily could have removed his phone number from the website if he did not want to be contacted.
It is important to note that even though Yelp lost its motion for summary judgment, it is not an adjudication on the merits of the case, rather the court determined that the parties have genuine disputes of material facts and that the contested evidence and witness credibility will need to be decided by a trier of fact, either by a jury or judge through the trial process.
Nevertheless, the ruling allows Sapan to proceed with his case. But this does not appear to be a standard TCPA case whereby an individual sues a telemarketer for calling his or her telephone number that is listed on the Do Not Call Registry; rather Sapan seeks to represent a class of plaintiffs who received more than one unauthorized call during a calendar year from Yelp between the 2013-2018 time period. Because Sapan is attempting to form a large class, Yelp theoretically faces serious financial repercussions because each proven TCPA violation will be subject to statutory damages.
TCPA lawsuits by aggressive plaintiffs can be big business, especially when violations are easy to prove, but violations are not always clear-cut. In this case, Yelp unquestionably contacted Sapan, but whether the telephone calls constituted violations of the TCPA remains a question for the trier of fact. Stay tuned.