constitutionality of the TCPA, the United States has intervened to support the law’sconstitutionality.
II. MOTION TO DISMISS
A motion to dismiss under Fed.R.Civ.P.12(b)(6) challenges the legal sufficiency of the pleadings. De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). In evaluating the motion, thecourt must construe the pleadings in the light most favorable to the non-moving party, acceptingas true all material allegations in the complaint and any reasonable inferences drawn therefrom.See, e.g., Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003). The Supreme Court has heldthat in order to survive a 12(b)(6) motion, “[f]actual allegations must be enough to raise a right torelief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thecourt should grant 12(b)(6) relief only if the complaint lacks either a “cognizable legal theory” or facts sufficient to support a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d696, 699 (9th Cir. 1990).
A. Heartland’s Liability for TextMarks’ Actions
1. Liability Under the TCPAHeartland argues that it cannot be held liable because Plaintiffs have not alleged thatHeartland sent the text messages at issue, but only “engaged” TextMarks to send the messages.Plaintiffs respond by asserting that the law recognizes liability for any party responsible for thetext messages, regardless of which entity physically sends the messages.It does not appear that the Ninth Circuit has explicitly decided this issue, but case law anda reasonable reading of the statute indicate that Heartland should not be allowed to avoid TCPAliability merely because it hired a different firm to send advertisements to its customers.First, at least one previous Ninth Circuit case implicitly accepted that an entity can beheld liable under the TCPA even if it hired another entity to send the messages. In Satterfield v.Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009), discussed by the parties with regard
Case 3:11-md-02261-JM-JMA Document 54 Filed 03/09/12 Page 3 of 14