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Edelsberg v. Vroom, Inc.

United States District Court, S.D. Florida

March 27, 2018

MARK EDELSBERG, individually and on behalf of all others similarly situated, Plaintiff(s),
v.
VROOM, INC., Defendant.

          ORDER

          DARRIN P. GAYLES, UNITED STATES DISTRICT JUDGE.

         THIS CAUSE comes before the Court on Defendant Vroom, Inc.'s (“Vroom”) Motion for Summary Judgment (the “Motion”) [ECF No. 76]. The Court has carefully considered the parties' briefs, the record in this case, the applicable law, and is otherwise fully advised. For the reasons that follow, the Motion shall be granted.

         I. BACKGROUND

         Plaintiff Mark Edelsberg (“Plaintiff” or “Edelsberg”) brings this putative class action against Vroom for alleged violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. Edelsberg alleges that Vroom violated the TCPA by using an Automatic Telephone Dialing System (“ATDS”) to send him an automated telemarketing text message. Vroom argues that its actions did not violate the TCPA because its text message was sent in direct response to an online classified advertisement posted by Edelsberg and, therefore, the text message did not constitute telemarketing. Vroom further argues that Edelsberg expressly consented to receiving the text message in question by including his cell phone number in the advertisement and directing interested buyers to contact him at that number for more information.

         A. Vroom's Business Model and “Sell Your Car” Platform

         Vroom is an online car retailer that buys, sells, and finances used vehicles over the Internet. [ECF No. 77, ¶ 1]. As a seller of used vehicles, Vroom necessarily needs to acquire used vehicles in order to maintain its inventory. [Id.] ¶ 2. Similarly, like any other used car retailer, Vroom has an interest in customers purchasing used vehicles from its inventory. [ECF No. 92, ¶¶ 1-2]. In order to source its inventory with vehicles purchased directly from individuals, Vroom launched an online appraisal tool (www.vroom.com/sell), referred to as the “Sell Your Car” or “SYC” platform, which allowed a used car owner to receive a cash offer for his or her vehicle after filling out Vroom's online appraisal form. [ECF No. 77, ¶¶ 4-6]. One of the ways Vroom identified individual sellers of used vehicles was through online classified advertisements on websites such as Craigslist (www.craigslist.com). [Id.] ¶ 8. Once Vroom identified a vehicle that appeared to meet its purchasing criteria, Vroom would send a text message to the seller expressing its interest in purchasing the advertised vehicle. [Id.] ¶ 9.

         The text message sent by Vroom would include a unique and individualized link to its online appraisal form that was tied to the particular advertisement for which the text message was sent in response. [Id.] ¶ 10. Once an individual submitted the appraisal form, Vroom would review the provided information and then provide the text recipient with a cash offer voucher for the purchase of his or her vehicle. [Id.] ¶ 11. While an individual who accepted an offer could decide to structure the transaction as a trade-in and obtain a replacement vehicle from Vroom's inventory, Vroom's purchase of the seller's vehicle was not contingent on the seller obtaining a vehicle from Vroom. [Id.] ¶ 12; see also [ECF No. 90, ¶ 12].[1]

         B. Plaintiff Advertises a Toyota Prius for Sale on Craigslist

         On or around July 12, 2016, Edelsberg posted a classified advertisement on Craigslist in an attempt to sell his mother's 2010 Toyota Prius. See Edelsberg Dep. Tr. [ECF No. 77-5] at 17:15-18, 18:18-25. Edelsberg's advertisement read as follows:

Toyota Prius 2010 - $9750 (Miami)
2010 Silver Toyota Prius 71, 000 miles. One owner, well kept,
good clean car.
Call XXX-XXX-6445[2] for more info
do NOT contact me with unsolicited services or offers

         See [ECF No. 77-6]. Edelsberg understood that his advertisement could be viewed by anyone who visited Craigslist. See Edelsberg Dep. Tr. [ECF No. 77-5] at 28:4-10. Edelsberg was not concerned about including his cell phone number on the posting and understood that anyone with an Internet connection would be able to see his ad and phone number. [Id.] at 29:2-6, 26:5-7. In fact, Edelsberg included his number in the ad specifically so “people could contact [him] to purchase the car” or for “more info.” [Id.] at 26:1, 95:1-17, 123:15-124:11.

         Edelsberg's advertisement did not state that he did not want to be contacted by dealers or distant buyers. [Id.] at 62-63:18-17, 64:3-13, 127:1-24, 157:11-23, 201:6-9. Edelsberg was not opposed to selling his car to a business and admits that he would have had no problem selling his car to Vroom if they offered top dollar. [Id.] at 63:14-17, 65:1-4.

         C. Vroom Sends Plaintiff a Text Message in Response to Plaintiff's Advertisement

         On or around July 14, 2016, Vroom sent Edelsberg a single text message in response to Edelsberg's online advertisement. [ECF No. 77, ¶ 30]. Vroom had purchased Toyota Priuses from individual sellers in the past and was interested in purchasing Edelsberg's Toyota Prius. [Id.] at ΒΆΒΆ 28-29. Vroom's text message was sent to the cell phone number listed in ...


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