The Telephone Consumer Protection Act (TCPA) carves out from the requirement for prior express consent, a call to a wireless phone “made for emergency purposes.” But what messages meet the standard of an “emergency purpose” under that exception? There has hardly been a plethora of interpretive decisions on that score.

However, on August 12, the Federal District Court in San Diego shed some additional light on that question in Derrick Brooks v. Kroger Co., 2019 U.S. Dist. LEXIS 135803, Case No: 3-19-cv-00106-AJN-MDD, August 12, 2019, when the Plaintiff brought a TCPA class action alleging that Kroger called him (and other purported class members) for marketing purposes without their consent. He supported the claim with reference to “portions” of online complaints submitted by Kroger customers.

Kroger moved to dismiss for failure to state a claim contending that the call “falls under the emergency exception of the TCPA because… [it] warned customers about salmonella-tainted beef and was related to consumers’ injury or death.” Kroger was permitted to support that assertion by including the full text of two of the cropped online customer complaints, including the portions omitted by the Plaintiff, which showed that was the purpose of the calls.

As one might say, “it’s not nice to play with” any Federal Judge (including Judge Battaglia). The Court castigated the Plaintiff for “misrepresentations in the complaint” and “purposely omitt[ing]… details from customer complaint information it found online to make Kroger’s calls seem nefarious.” Considering the Plaintiff’s conduct and the “complete” online information, the Court ruled that “the complaint makes only conclusory allegations that the calls were made for marketing purposes, and even goes so far as to misrepresent information to the Court in doing so.” Kroger’s motion to dismiss for failure to state a claim was granted.

Undeterred, the Plaintiff sought to amend the complaint by arguing a theory that the emergency exception doctrine “is that an individual must be in direct harm to justify a[n] [emergency] call.” He attempted to bootstrap that theory relying on footnote language in a Federal Communications Commission (FCC) decision admittedly limited to school safety announcements.

The Court would have none of it, finding that the “[P]laintiff begs for a greater act by Defendant than the statute contemplates.” Judge Battaglia added that “there is no statutory or legal justification to read the [emergency] exception so narrowly. Here Kroger had a bona fide emergency in its tainted and potentially life-threatening beef, and thus called potential consumers of that beef to warn them.” The Court denied leave to amend because “there are no set of facts which would solve Plaintiff’s problem… and [j]ustice… does not require that [such] leave… be granted where the amendment would be futile.”

Food for thought for next time there is an “emergency” in TCPAWorld.