As law students learn during their first civil procedure course, courts generally take factual allegations “as true.”  This gives the plaintiff “a full opportunity to conduct discovery and thereby uncover facts that support his or her claim.”  A court in Arkansas applied this rule with diligence–allowing a TCPA class action to proceed despite compelling evidence the plaintiff consented to the text she received.  Shears-Barnes v. Acurian, Inc., No. 4:20-cv-00161-LPR, 2021 U.S. Dist. LEXIS 59011 (E.D. Ark. March 29, 2021).

The plaintiff, Kimberly Shears-Barnes, alleged she received one text message from Acurian.  The text message read: “Help advance Migraine research. Payment up to $400, varies by study. Visit [website link] or call [number] today. Reply STOP to opt out.” In response to the complaint, Acurian submitted a declaration explaining that Ms. Shears-Barnes consented to the text:

On June 6, 2017, Plaintiff participated in a pre-screening questionnaire concerning a migraine headaches study. Attached to my declaration as Exhibit A is a true and correct copy of a redacted Acurian business record [by] which Plaintiff gave Acurian written consent to make certain communications on June 6, 2017.

The “Exhibit A” consisted of business records demonstrating that Ms. Shears-Barnes clicked “Next” in response to a prompt that included a disclaimer: Acurian “may contact you by phone using automated technology or other means regarding research studies.”

Acurian argued that the declaration and exhibits were “necessarily embraced by the pleadings” and thus proper to consider on a motion to dismiss.  The Court disagreed, explaining that the declaration was not “embraced by the pleadings” because Ms. Shears-Barnes’s complaint alleged she “has never done business with [Acurian] and has never provided [Acurian] her phone number or consented to text message calls from [Acurian] on her mobile telephone.”  The court distinguished a 2014 decision from the District of Minnesota; in that case, the plaintiff alleged a phone call and the court merely considered the content of the phone call.

The Court concluded that “Ms. Shears-Barnes has a very tough road to how. But that’s not the standard for throwing out a case at this early stage.”