In this week’s article we examine the complaint in Johnson v. Uber Technologies, Inc., Index No., United Sates District Court for the Northern District of Illinois (ED), a class action on behalf of “All persons in the United States who received one or more text messages inviting them to sign up to drive for Uber”. The Johnson class action alleges violation of the federal Telephone Consumer Protection Act (TCPA), seeks damages of $500 (trebled) for each text message sent which and is one of several brought against Uber. “Uber succeeded in defeating the certification of the class in at least two cases in California last year. In those cases, U.S. District Judges Edward Chen and Jon Tigar held that Uber’s message was not telemarketing which requires a sender as ‘express written consent’ to send the message. Instead, the judges said the messages soliciting drivers were offering employment…Uber faces a similar lawsuit in the Northern District of Georgia…Uber is also currently defending itself against a TCPA class action in Chicago’s federal court related to text messages it sent to users to confirm their account” [Strom, Uber Hit With New Class Action Over Text Messages, The National Law Journal (5/23/2016)].
Travel Law Update
Not So Friendly Alligators In Disneyworld
In Madigan & Hauser, Divers Find Body of Toddler Snatched by Alligator at Disney Resort, nytimes.com (6/15/2016) it was noted that “Lane Graves was doing what any 2-year-old boy would be doing on a hot Florida evening-splashing around in the shallow waters of a lagoon. His parents and sister, Nebraskans all, were nearby on the beach at a Disney resort here, relaxing, carefree. Suddenly, an alligator sprang from the water and clamped its jaws around the boy. Lane’s father, Matt Graves, bounded into the lagoon to wrestle his son from the animal’s steel-trap grasp, but lost the battle…The alligator made off with the boy and an intense search for him yielded nothing in the wide, murky expanse of water until more than 16 hours later…when divers found him about six feet below the surface and only 10 to 15 feet from where he had last been seen…’His body was completely intact’ Sheriff Demings said…Alligators are a common sight in Florida ponds, lakes, lagoons and canals. The sheriff said five alligators were taken from the lagoon after the boy went under. They have been euthanized to determine if any of the them killed the boy…Thomas Scolaro, a partner at the Miami law firm Leesfield Scolaro, which has represented families after alligator attacks elsewhere, said that in this case, ‘the facts look horrible for Disney’. ‘While this is a tragedy, it was entirely preventable had Disney acted reasonably and not left unwitting tourists at the mercy of dangerous and wild animals that roam its resorts’…Wildlife experts estimate that there are 1.3 million alligators in Florida, and that they can be found in all 67 counties”.
Terror Targets Update
In Steinmetz, US Travel Alert: Watch out for terrorists because it’s summer, eturbonews.com (6/2/2016) it was noted that “Much coverage has been given to the US State Department’s issuing a travel alert for Europe on May 31st. In it they point out that Europe hosts ‘major events’, has ‘tourist sites’, sustains ‘restaurants’, has ‘commercial centers’ and that there is also transportation. In particular, they note that two large events are occurring (the European Football Championship in France and the World Youth Day in Poland) and that both of these events will cause disruption, some of which will be security related. ‘The large number of tourists visiting Europe in the summer months’ they caution ‘will present greater targets for terrorist planning attacks in public locations, especially at large events”.
In Apuzzo & Lichtblau, Afer F.B.I.’s Inquiry Into Omar Mateen, a Focus on What Else Could Be Done, nytimes.com (6/14/2016) it was noted that “The nightclub shooting in Orlando, Fla., in which a gunman killed 49 people has brought unusual attention to a seemingly mundane process. For 10 months F.B.I. agents investigated the gunman, Omar Mateen, but closed the investigation after following a standard checklist. F.B.I. supervisors approved the decision”.
In Mazzetti, Lichtblau & Blinder, Omar Mateen, an ‘Americanized Guy’, Shows Threat of Lone Terrorists, nytimes.com(6/13/2016) it was noted that “The government investigation could take months, but an early examination of Mr. Mateen’s life reveals a hatred of gay people and a stew of contradictions. He was a man who could be charming, loved Afgan music and enjoyed dancing, but he was also violently abusive”.
In Clark & Gladstone, EgyptAir Flight 804 Wreckage Reported in Mediterranean, nytimes.com (6/15/2016) it was noted that “Searchers in the Mediterranean have found the first sunken wreckage of the EgyptAir flight that mysteriously veered off course and plunged 37,000 feet last month…All 66 people aboard the jetliner, EgyptAir Flight 804 bound for Cairo from Paris, were killed in the still-unexplained crash on May 16, as the plane was on the final leg of its trip in Egyptian airspace”.
Zika, Zika, Zika
In McNeil & Tavernise, W.H.O. Says Olympics Should Go Ahead in Brazil Despite Zika Virus, nytimes.com (6/14/2016) it was noted that “The Olympic Games should go as planned, the World Health Organization said Tuesday, and athletes and spectators, except for pregnant women, should not hesitate to attend so long as they take precautions against infection with the Zika virus”.
Bird Flu In China
In Bird flu: Taiwan raises travel alert for Tianjin, China, eturbonews.com (6/15/2016) it was noted that “The Centers for Disease Control (CDC) decided Wednesday to raise it travel alert for Tianjin on northern China to level 2 ‘Alert’ warning travelers planning to visit the coastal metropolis to take enhanced precautions against avian flu”. For a discussion of the dangers of travel in China see Dangerous student tours: The Chinese Tick Case, eturbonews.com (8/28/2014).
Body On Beach Near Rio
In Body of missing tourist washed up on a beach near Rio de Janeiro, eturbonews.com (6/11/2016) it was noted that “A body that washed up on a beach near Rio de Janeiro three days ago is that of missing Australian traveler Rye Hunt, Brazilian police said Saturday”.
European Football Violence
In Steinmetz, War! Tourists from England, Russia and France involved in bloody fighting, eturbonews.com (6/11/2016) it was noted that “A tourist war erupted in the French port city of Marseille on Saturday between England, Russia and France. Ambulances were rushing sports fans with bloody faces to area hospitals…To be exact, the street battle was between sports tourists attending EURO 2016 games in France fighting with French football supporters in Marseille, France and the Russians were in the middle of it”.
Save The Walruses
In Federal Aviation Administration acts to protect walruses in Alaska, eturbonews.com (6/14/2016) it was noted that “The (FAA) is working to address concerns that low-flying aircraft could cause walruses to stampede and kill their pups or harm humans on the Alaska peninsula…Alaska natives, villagers, pilots and other interested stakeholders have expressed concerns about the effects of low-flying aircraft on animals…”.
Save The Dolphins
In Smith, National Aquarium Plans to Create Dolphin Sanctuary, nytimes.com (6/14/2016) it was noted that “After years of research into dolphin behavior and countless protests from activists about their life in captivity, the dolphins at the National Aquarium in Baltimore will be moved to an oceanside sanctuary”.
Train & Bus Collisions
In Speeding bus collides with elephant in Uganda: 3 dead, eturbonews.com (6/9/2016) it was noted that “Tragedy occurred along the busy Kampala-Gulu highway in the wee hours of Wednesday morning as a speeding bus traveling to northern Uganda knocked an elephant dead that was crossing the road and rolled several times”.
In Steinmetz, Three dead, 40 injured in Belgium: Passenger train collision, eturbonews.com (6/6/2016) it was noted that “At least 3 dead and 40 were injured in train collision in the Belgium torn of Hermalle-sous-Huy, local authorities say. A passenger train crashed into the back of a freight (train)…The two trains were on the same track”.
Elephant Ivory Banned in U.S.
In Smith, U.S. Bans Commercial Trade of African Elephant Ivory, nytimes.com (6/2/2016) it was noted that “Under current guidelines, ivory can be sold if it was brought into the United States before it was listed as endangered or if the elephant died of natural causes, as long as there is documentation. The new rules will restrict those sales to genuine antiques, like ivory statues, artwork or chiseled chess pieces, that have been lawfully imported, as well as items like musical instruments that were made using less than 200 grams of ivory. The new rules aim to curb the rampant slaughter of the elephant, an endangered species, which experts say accounts for 96 deaths a day. They also intend to severely restrict the African ivory market in the United States, the world’s second-largest consumer of illegally poached ivory”.
Saudi Arabia Invests $3.5 Billion In Uber
In Isaac & de la Merced, Uber Turns to Saudi Arabia for $3.5 Million Cash Infusion, nytimes.com (6/1/2016) it was noted that “In its quest to build a global empire, Uber has turned to the Middle East for its biggest infusion of cash from a single investor. Uber said on Wednesday that it had raised $3.5 billion from Saudi Arabia’s Public Investment Fund, the kingdom’s main investment fund, in one the largest-ever investments into a privately held start-up. The money was part of the ride-hailing giant’s most recent financing round and continued to value Uber at $62.5 billion”. See also: Hardy, What Saudi Arabia’s $3.5 Billion in Uber Buys, nytimes.com (6/2/2016).
Uber In Kampala
In Uber makes good of promise and launches in Kampala, eturbonews.com (6/2/2016) it was noted that “Alon Lits, General Manager for Uber Sub Saharan Africa said on the occasion of the launch: ‘We-re really excited to be launching Uber in Kampala, a world-class African city. We are inspired by the city’s rapidly developing infrastructure and spirit of entrepreneurship and look forward to giving people in the city an affordable, easy and flexible choice to move around the city safely and reliably”.
Uber App Improvement Roll Out
In Benner, Uber Rolls Out App Improvements to Meet Driver Demands, nytimes.com (6/6/2016) it was noted that “Uber is now trying to improve the experience of its drivers. On Monday, the company announced a host of software improvements to its app to address driver demands. Among the changes, drivers can now more easily pause ride requests, making it easier for them to take bathroom breaks and fill their gas tanks. Drivers can now also be paid instantly for each ride they complete, rather than weekly, and see on the app’s dashboard how much they have earned”.
Uber’s Competition In Kenya
In Uber’s success drives competition to new levels, eturbonews.com (6/10/2016) it was noted that “News from Nairobi suggests that Uber will very soon have to face competition of a new kind. Safaricom, Kenya’s largest mobile phone and data company, appears to have joined forces with a new taxi outfit by the name of Littlecabs, which is emerging from the ranks of former Easy Taxi drivers after that company pulled out of Kenya two months ago. The new outfit will, like UBER, use an app through which the vehicles can be ordered, developed specifically for the Kenyan market by a local software company”.
Uber Executives Fined In France
In Scott, Uber and Its Executives Are Fined in France, nytimes.com (6/9/2016) it was noted that “As part of the continuing global backlash over the popular ride-sharing service, Uber and two of its senior European executives were convicted and fined nearly $500,000 in France on Thursday for running an illegal transportation business….Traditional taxi drivers in France and other European countries have fought to restrict the company, saying that Uber does not comply with local rules and, in some cities, may represent a threat to public safety. The company denies these allegations. The latest ruling in France-the result of a lengthy legal process that dates to early last year-relates to UberPop, the company’s low-cost service, in which drivers do not have professional livery licenses. After a series of strikes by the taxi unions and the banning of UberPop in France, Uber eventually suspended its low-cost service in the country last summer. As part of the French judge’s ruling on Thursday, Uber will have to pay a fine of $906,000, though half of that figure was suspended. Pierre-Dimitri Gore-Cty, the company’s head of Europe, the Middle East and Africa and Theobald Imphal, Uber’s general manager in France, must pay an additional combined penalty of $28,500 (because they) were convicted of deceptive commercial practices and complicity in operating an illegal transportation service. They were cleared of some related charges linked to privacy complaints. ‘The judgment does not impact our service in France today-which now connects more than 12,000 professional drivers with 1.5 million passengers-but we will appeal’”.
Airbnb In New York Courts
In Testis & Laciness, Airbnb Faces Strong Headwinds in N.Y. Courts, New York Law Journal (6/1/2016) is was noted that “This column will explore some recent court decisions concerning the short-term rental of residential apartments via Airbnb. Given the relatively recent growth and popularity of Airbnb, there are few reported decisions on the topic by New York Courts. The decisions that do exist, where they involve rent regulated tenants, build on prior case law prohibiting tenants from profiteering on their below market tenancies and renting their apartments on a short-term basis. While there is little dispute that tenants engaging in sort-term rentals via Airbnb are violating the law and their leases, the main issue emerging in the case law is whether, based on the circumstances of each case, the tenant should be afforded an opportunity to cure the default”.
Travel Law Article:
The following are allegations set forth in the Johnson Complaint.
“1. This case challenges Uber’s practice of unlawfully sending autodialed telemarketing calls, including text messages, to wireless/cellular telephones (‘wireless phones’) without prior express written consent as required by the TCPA. To get such consent, telemarketers must tell consumers the telemarketing will be done with auto dialer equipment and that consent to receive telemarketing is not a condition of purchase”.
2. “Here, Uber transmitted unauthorized telemarketing in the form of ‘text messages’ to cell phones including or introducing an advertisement for the purpose of encouraging the purchase of goods or services”.
3. Uber did not have Plaintiff’s prior express written consent to send autodialed text message to his wireless phone.”
4. The TCPA grants consumer a private right of action, with provision for $500 or the actual monetary loss in damages for each violation, whichever is greater, and the Court may increase those damages up to three times when it determines a violation was knowing or willful…Plaintiff seeks statutory damages for each violation of the TCPA and request that the Court treble those damages”.
5. On behalf of the Class, Plaintiff also seeks an injunction requiring Uber to cease all unlawful text messages, together with costs and reasonable attorneys’ fees as appropriate”.
“13. This case challenges Uber’s practice of sending autodialed telemarketing calls, including text messages, to wireless/cellular telephones…without prior express written consent”.
“15. Short Message Service (‘SMS’), more commonly known as ‘text messaging’ is a popular means of communicating among cell phone subscribers”.
“16. The most common form of text messaging is person-to-person messaging. Text messages may also be sent by automated systems to facilitate the ordering of products and services from cell phone or for participating in contests or other marketing programs”.
Good For Business
“17. Businesses continually seek cost-effective ways to market their goods and services. The popularity of cell phones and text messaging has created a marketing opportunity for businesses but their telemarketing efforts are limited by restrictions on telephone, facsimile and email solicitations”.
“18. Unlike conventional advertising, text messaging advertising requires the use of technology-cell phones- owned and paid by the text message recipients.”
“19. According to the Federal Communications Commission (‘FCC’), ‘Month after month, unwanted…texts, both telemarketing and informational, top the list of consumer complaints received by the Commission. The [TCPA] and [FCC] rules empower consumers to decide which…text messages they receive, with heightened protection to wireless consumers…’”.
“20. The FCC has explained, ‘Calling and texting consumers en masse has never been easier or less expensive’ in part, because skyrocketing growth of mobile phones, rising from approximately 140 million wireless subscriber connections in 2001 to approximately 326 million in 2012/ Additionally, 36 percent of adults were wireless-only in the second half of 2013, compared to fewer than three percent of adults at the beginning of 2003′[fn 8 According to a 2013 study by the Pew Research Center, 60% of cell phone users who use text messaging receive unwanted text message spam and ‘[o]f those texters, 25% face problems with spam/unwanted texts at least weekly]”.
Intent Of Congress
“21. The intent of Congress, when it established the TCPA in 1991, was to protect consumers from the nuisance, invasion of privacy, cost and inconvenience that autodialed [text messages] calls generate’”.
“22. At issue here, Uber transmitted text messages to cell phone users…to promote Uber’s products and services”.
The Unwanted Text Message
“25. On or about April 13, 2016, Plaintiff received the following text message…’You’re invited to drive Uber. No schedule. No boss. Sign up now and get a $500 bonus. Sign up Link>>tinyurl.com/tammyuber’”.
“28. On information and belief, the April 13 text message was sent by Uber or on Uber’s behalf to recruit Plaintiff to become a driver for Uber’s transportation app.”
“29. Plaintiff did not expressly consent to receive a commercial text message from Uber”.
“31. Uber never clearly and conspicuously disclosed to Plaintiff that he had consented to receive automated text calls from Uber-because he never so consented-or that he was not required to consent to such calls in order to purchase goods or services from Uber”.
The damages sought in the Johnson complaint include “$500.00 in statutory damages for each violation of the TCPA”, “That the court treble the statutory damages if it concludes that Uber’s violations were willful or knowing”, “The at Court enter an injunction prohibiting Uber from engaging in the same or similar practices alleged herein” and “That p]laintiff and members of the class recover their costs of the suit and attorney’s fees as allowed by law”.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
This article may not be reproduced without the permission of Thomas A. Dickerson.