Gerrard v. Acara Solutions Inc.

DECISION AND ORDER   Plaintiff Samantha Gerrard, on her behalf and on behalf of a putative class,¹ alleges that Defendant, Acara Solutions Inc., sent numerous unsolicited text messages to her cellular telephone in violation of the Telephone Consumer Protection Act (“TCPA”). Acara moved to dismiss the Complaint on several grounds, including that the alleged messages were neither “advertisements” nor “telemarketing” within the meaning of the TCPA and its implementing regulations. The Magistrate Judge recommended denying Acara’s motion to dismiss.² Dkt. 20. This Court is not persuaded. The text messages at issue alert Gerrard to an employment opportunity. They do not constitute advertisements or telemarketing within the meaning of the TCPA’s implementing regulations. Gerrard, therefore, fails to state a claim under the TCPA. Her Complaint is dismissed with prejudice. BACKGROUND Gerrard alleges that, beginning in early 2018, Acara, doing business as Superior Group,³ sent “over 240 unsolicited, unwanted autodialed text messages” to her cellular phone. Dkt. 1 at

4, 16. Gerrard alleges that she received 210 autodialed messages on a single day — the majority of which “contained exactly the same text” regarding a job opening. Id. at 18. Specifically, the text messages stated: “Hi, Superior Group has [a] job opening for Material Handler/Production Operator at Buffalo Grove, [Illinois]. Contract position.” Id. Gerrard alleges that she “does not have a relationship with Superior Group and has never consented to any contact from [Acara].” See Dkt. 1 at 21. Gerrard also states that she twice asked the sender to stop. See id. at 4; see also id. at 19 (responding to the text messages and asking the sender to “stop spamming [her] phone”). Nonetheless, she continued to receive similar text messages about this job opening. See id. at 20 (receiving similar text messages about the contract position). Some of the alleged text messages directed her to “call/text Amy” at a certain phone number if she was “interested” in the position. Id. Gerrard further alleges that the text messages were sent using an automatic telephone dialing system (“ATDS”). See, e.g., id. at