Parler Moves to Dismiss or Transfer TCPA Suit, or Compel Arbitration
Parler fired back with a three-pronged attack Thursday in U.S. District Court for Southern Florida in Miami (docket 0:22-cv-61805) against the first of two complaints in just over a month that accused the right-leaning social media platform of Telephone Consumer Protection Act violations. It filed separate and simultaneous motions to dismiss the suit and to compel arbitration of the dispute. It also filed a third motion to transfer the case to U.S. District Court for Nevada in Las Vegas.
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Parler is alleged in the Miami lawsuit to have inundated Broward County consumer Catherine Migliano with telemarketing text messages promoting the sale of Donald Trump non-fungible tokens in violation of the TCPA (see 2210280002). Parler’s answer to a second TCPA complaint (see 2210240040) was due Friday in Pensacola. Both complaints also allege Parler violated the Florida Telephone Solicitation Act.
Migliano, as a “threshold matter,” fails to allege that she or any putative class member “suffered a concrete harm or injury-in-fact which may be redressed by a judgment from this Court,” said Parler’s motion to dismiss. Migliano thus “lacks standing to pursue the claims asserted,” it said. Lawyers with Graves Garrett wrote the motions, having recently taken over as Parler’s counsel from Genovese Joblove.
Migliano “primarily claims entitlement” to statutory damages as compensation for violations of statutory rights, said Parler’s motion to dismiss. But the violation of a statutory right alone “is not a concrete or particularized harm capable of conferring Article III standing, even where Congress has attempted to impose statutory damages for such a violation,” it said.
The FTSA’s auto-dialer regulations are preempted by the TCPA, said the motion to dismiss. “Though Migliano does not make a TCPA auto-dialer claim, the TCPA regulates nearly identical conduct as the FTSA purports to regulate,” it said. “While the FTSA does not go so far as to outright prohibit the use of auto-dialers in all circumstances, in at least these three respects, the FTSA’s purported regulation of interstate telemarketing is more restrictive than the TCPA.”
The TCPA preempts the FTSA “to the extent that the two statutes conflict,” said the motion to dismiss. “Because the FTSA places substantially more burdensome regulations on interstate telemarketers than does the TCPA and undermines the TCPA’s policy goal of nationwide uniformity in telemarketing laws, the FTSA is preempted to the extent of the conflict.”
Parler’s motion to compel the dispute to arbitration said Migliano’s registration for and use of Parler’s services “binds her to a mandatory arbitration provision.” She is “contractually barred from suing Parler in a representative capacity or otherwise,” said the motion to compel. Migliano entered into “a valid, enforceable arbitration agreement that applies to her claims against Parler,” it said.
Migliano not only has continued her registration and use of Parler, but she also subscribed to Parler's newsletter, which has been delivered for the past 59 weeks to her email inbox using her registered email address on file, said the motion to compel. Every issue of the newsletter includes a link to the terms or user agreement in effect, it said: “Migliano not only registered and used Parler’s services, accepting the new terms via her continued use, but she voluntarily subscribed to and received ongoing notifications which included links to updated terms, the website, and the services in general.”
Migliano sued in the “wrong forum” when she chose the U.S. District Court in Miami, said Parler’s motion for a change of venue to Las Vegas. When she became a Parler user in November 2020, Migliano agreed to Parler’s Oct. 23, 2020, terms of service that required her to litigate any disputes against Parler exclusively in the state or federal courts in Clark County, Nevada it said.
In that same agreement, Migliano “consented to personal jurisdiction” in Clark County, and “waived any objection as to inconvenient forum,” said the motion to transfer. If the court declines to compel arbitration, “it must enforce the forum selection clause and transfer this case” to Las Vegas, it said.