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September 2023

Gordon & Rees Advertising & E-Commerce Team Obtains Complete Dismissal of TCPA Class Action

A Gordon & Rees Advertising & E-Commerce team, including Partners Damon Wright and Clair Wischusen and Senior Counsel R. Samuel Stein, obtained dismissal of a class action in the U.S. District Court, District of New Mexico under the Telephone Consumer Protection Act (“TCPA”) and the New Mexico Unfair Trade Practices Act. 

The action was filed by a prolific TCPA plaintiffs’ attorney who alleged that the plaintiff received unwanted text messages for the defendant's male health enhancement product and that the plaintiff’s phone number was listed on the National Do Not Call Registry. The plaintiff sued the e-commerce retailer, the retailer’s advertising company, and their principals based on alter ego and vicarious liability theories. The action was initially brought in New Mexico state court, but the team removed the action and stipulated to have it decided by a magistrate judge.

The Gordon & Rees team moved to dismiss for lack of personal jurisdiction and failure to state a claim because only one of the defendants had any ties to New Mexico and the plaintiff failed to sufficiently allege a relationship between the defendants and the third parties who allegedly sent the text messages. U.S. Magistrate Judge Kevin R. Sweaza issued a 20-page opinion dismissing the action on both bases. The court found that the plaintiff’s allegation that the defendants were responsible for the texts was mere speculation and that the plaintiff did not controvert the defendants’ declarations that they did not place or authorize any text messages. The court also found that the plaintiff failed to demonstrate that the out-of-state defendants had sufficient minimum contacts with New Mexico to exercise personal jurisdiction over them. The court rejected the plaintiff’s request for jurisdictional discovery because the plaintiff failed to establish how the requested discovery would support personal jurisdiction. Because the plaintiff had already amended once, the court did not grant leave to amend. 

R. Samuel Stein
Clair E. Wischusen
Damon W.D. Wright