United States District Court, S.D. Florida
MARK EDELSBERG, individually and on behalf of all others similarly situated, Plaintiff(s),
VROOM, INC., Defendant.
P. GAYLES, UNITED STATES DISTRICT JUDGE.
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
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
Vroom's Business Model and “Sell Your Car”
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.
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].
Plaintiff Advertises a Toyota Prius for Sale on
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 for more info
do NOT contact me with unsolicited services or offers
[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,
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.
Vroom Sends Plaintiff a Text Message in Response to
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
¶¶ 28-29. Vroom's text message was sent to the
cell phone number listed in ...