Judge Denies InvestorPlace Motion to Dismiss, Says Its Texts Plausibly Were a ‘Pitch’

U.S. District Judge Kenneth Bell for Western North Carolina in Statesville denied InvestorPlace Media’s Sept. 27 motion to dismiss plaintiff Courtney Hill’s amended Telephone Consumer Protection Act complaint, said Bell’s signed order Monday (docket 5:23-cv-00111). Hill alleges that InvestorPlace, a financial research firm, violated the TCPA by sending her telemarketing text messages without her consent (see 2309280016). But InvestorPlace’s motion to dismiss contended that the text messages Hill allegedly received bore “no resemblance” to telemarketing, as the FCC has defined it. Hill alleges that most of the text messages she received contained a link that directs the viewer to a specific page of InvestorPlace’s website hosting a briefing or article. The rest simply urged the recipient to visit the InvestorPlace’s website for more details. Hill’s amended complaint doesn’t describe “with specificity” the web pages linked to the text messages she received, said the judge’s order. While the court finds that Hill has met her “limited burden” to plead a plausible TCPA claim, she “will of course be required to establish in discovery that the linked web pages reflect the commercial activity sufficient to satisfy the statutory definition of telemarketing,” it said. Hill can plausibly allege InvestorPlace’s text messages “meet the regulatory definition of telemarketing if their purpose was to promote a commercial transaction with the company,” it said. Though the text portion of the communications “may not directly encourage” Hill to purchase any services, her allegations assert that the embedded links “plausibly tell a different, more mercantile story,” it said. Hill has plausibly alleged that the text messages offering investment advice were a “pitch” meant to draw recipients to InvestorPlace’s website “where they presumably would be encouraged to purchase a subscription,” said the order. The court accordingly finds the text messages don’t merely provide informational content, “but instead plausibly direct the recipient to specific websites that provide free investment advice as a part of an effort to market the purchase of a subscription from InvestorPlace,” it said.