Case 3:19-cv-05619-TSH Document 41 Filed 07/09/20 Page 1 of 15
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`RICHARD ROGERS,
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`Plaintiff,
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`v.
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`POSTMATES INC.,
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`Case No. 19-cv-05619-TSH
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`ORDER RE: MOTION TO DISMISS
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`Re: Dkt. No. 36
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`Defendant.
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`I.
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`INTRODUCTION
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`Plaintiff Richard Rogers brought this putative class action under the Telephone Consumer
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`Protection Act (“TCPA”) after receiving an unsolicited text message on his cellular phone with a
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`hyperlink directing him to a job board on Defendant Postmates, Inc.’s website. Pending before the
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`Court is Postmates’ Motion to Dismiss Second Amended Complaint pursuant to Federal Rule of
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`Civil Procedure 12(b)(6). ECF No. 36. Plaintiff filed an Opposition, ECF No. 38, and Defendant
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`filed a Reply, ECF No. 39. The Court finds this matter suitable for disposition without oral
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`argument and VACATES the July 16, 2020 hearing. See Civ. L.R. 7-1(b). Having considered the
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`parties’ positions, relevant legal authority, and the record in this case, the Court GRANTS
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`Defendant’s motion for the following reasons.
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`II. BACKGROUND
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`Rogers is a resident of the State of Florida. Sec. Amend. Class Action Compl. (“SAC”) ¶
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`4. Postmates, a corporation headquartered in San Francisco, operates a mobile application “Urban
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`Logistics platform” that connects its customers to thousands of delivery drivers who are signed-up
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`in its network to provide deliveries of food, groceries, and other items. Id. ¶ 5 (quoting “About
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`Postmates,” Postmates Inc., available at https://postmates.com/about (last accessed July 6, 2020));
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`Case 3:19-cv-05619-TSH Document 41 Filed 07/09/20 Page 2 of 15
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`SAC ¶ 11. The SAC alleges that “in an effort to advertise its delivery service and encourage
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`[Rogers] and other class members to sign-up to become delivery drivers, Postmates contracted
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`with Bird Dog Media, LLC [], one of its marketing agents, to promote its mobile application and
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`driver opportunities to as many individuals as possible.” Id. ¶ 12. As part of these efforts, Bird
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`Dog sent thousands of text messages to individuals encouraging them to sign up for Postmates’
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`delivery-driver network. Id. ¶ 13.
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`On or about April 8, 2019, Bird Dog sent the following automated text message (“text”) to
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`Rogers’ cellular telephone number:
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`Id. ¶ 14. Rogers alleges that the text was sent on Postmates’ behalf, that the dedicated number,
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`(724) 394-0835, is owned and operated by Bird Dog and is regularly used to transmit text
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`advertisements on Postmates’ behalf and for Postmates’ benefit. Id. ¶¶ 14, 15. According to
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`Rogers, the hyperlink in the text (http://delivrpublic.us/35ecb24c) directed recipients to the
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`following URL, which was a webpage owned, operated, and maintained by Postmates:
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`https://fleet.postmates.com/?utm_source=birddogmedia&utm_medium=jobboard&utm_campaign
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`=Birddogmedia_Supply_JB_Postings_nj_Desktop_CPL_All_All_Core&city_id=54&z=08854&ut
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`m_term=588582319&utm_content=. Id. ¶ 16. Rogers alleges that this webpage was specifically
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`created for the purposes of the Bird Dog marketing campaign, and that Postmates was aware that
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`individuals were directed to the webpage and its services pursuant to this marketing campaign and
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`as a result of text messages sent by Bird Dog. Id. ¶ 17. Rogers asserts that Postmates
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`“specifically oversaw, monitored, tracked, [] realized and appreciated the results” of Bird Dog’s
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`marketing campaign, including through use of campaign parameters embedded within the URLs to
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`Case 3:19-cv-05619-TSH Document 41 Filed 07/09/20 Page 3 of 15
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`which individuals were directed by Bird Dog’s texts. See id. ¶ 18 (noting that the source
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`parameter in the URLs specifically identified “birddogmedia” as the source of the traffic). Rogers
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`contends that Postmates has information in its possession reflecting that the hyperlink contained in
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`Bird Dog’s texts to individuals originated traffic to Postmates’ website as a result of individuals
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`clicking the hyperlink. Id.
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`According to Rogers, Bird Dog’s text constituted “advertising” and “telemarketing”
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`material within the meaning of the TCPA and its implementing regulations because the text
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`promoted Postmates’ delivery-driver network, and Postmates offered for Rogers to perform the
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`services promoted in the text for the purpose of deriving commercial profit. Id. ¶ 19. Bird Dog,
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`Rogers contends, was at all times acting on behalf of Postmates pursuant to a marketing campaign
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`that Postmates authorized, contracted for with Bird Dog, and paid Bird Dog to conduct. Id. ¶ 20.
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`For its part, Postmates “was aware, or should have been aware, that Bird Dog was sending such
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`text messages on its behalf, and [] knowingly allowed and permitted Bird Dog to conduct such
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`marketing at least until the time that [Rogers] filed [] suit.” Id.
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`Rogers asserts one claim for relief, a violation of the TCPA, 47 U.S.C. § 227. He seeks to
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`represent a class of:
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`All persons in the United States:
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`(1) who, at any time between September 6, 2015 and the
`present, were sent at least one text message to a number
`assigned to a cellular telephone service that contained a
`hyperlink which, if accessed, would have redirected to
`a URL that included (inter alia) the following text in its
`address: “postmates.com/?utm_source=birddogmedia”;
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`and
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`2) for whom Postmates, Inc. and Bird Dog Media, LLC
`lack any record of such recipient, prior to being sent
`such text message, having provided to Postmates, Inc.
`or Bird Dog Media, LLC (as a disclosed agent of
`Postmates, Inc.) the telephone number to which such
`message was sent.
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`Id. ¶ 26. According to Rogers, neither he nor any other Class member provided express consent to
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`Postmates or Bird Dog to send the subject texts, id. ¶ 42, and all the texts were sent using an
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`automatic telephone dialing system, within the meaning of the TCPA, id. ¶ 43.
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`In its Motion to Dismiss (“MTD”), Postmates does not challenge that the text constituted a
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`communication in violation of the TCPA. Instead, it argues that Rogers fails to allege facts
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`sufficient to show that Postmates is vicariously liable for Bird Dog violating the TCPA.
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`III. LEGAL STANDARD
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`Federal Rule of Civil Procedure 12(b)(6) provides that a party may seek dismissal of a suit
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`for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive
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`a Rule 12(b)(6) motion to dismiss, a complaint must plead “sufficient factual matter, accepted as
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`true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
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`(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility does not
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`mean probability, but it requires “more than a sheer possibility that a defendant has acted
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`unlawfully.” Iqbal, 556 U.S. at 687. In considering a motion to dismiss, the court accepts factual
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`allegations in the complaint as true and construes the pleadings in the light most favorable to the
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`nonmoving party. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
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`2008); Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, “the tenet that a court must
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`accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s
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`elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 678.
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`If a Rule 12(b)(6) motion is granted, the “court should grant leave to amend even if no
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`request to amend the pleading was made, unless it determines that the pleading could not possibly
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`be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en
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`banc) (citations and quotations omitted). However, a court “may exercise its discretion to deny
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`leave to amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated
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`failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing
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`party . . . [and] futility of amendment.’” Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876,
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`892-93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178 (1962)).
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`IV. DISCUSSION
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`The TCPA makes it “unlawful for any person within the United States, or any person
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`outside the United States if the recipient is within the United States . . . to make any call . . . using
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`any automatic telephone dialing system [(“ATDS”)] or an artificial or prerecorded voice to any
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`telephone number assigned to a . . . cellular telephone service . . . or any service for which the
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`called party is charged for the call . . . .” 47 U.S.C. § 227(b)(1)(A)(iii). An ATDS is “equipment
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`which has the capacity to store or produce telephone numbers to be called, using a random or
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`sequential number generator and to dial such numbers.” Id. § 227(a)(1). To properly plead a
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`TCPA claim, a plaintiff must allege that (1) the defendant called or text messaged a cellular
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`telephone number; (2) using an ATDS; (3) without the recipient’s prior express consent. See
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`Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (citing 47 U.S.C.
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`§ 227(b)(1)); Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009) (“[A] text
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`message is a ‘call’ within the TCPA.”).
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`There are two potential theories of liability under the TCPA: (1) direct liability; and (2)
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`vicarious liability. Thomas v. Taco Bell Corp., 582 Fed. Appx. 678, 679 (9th Cir. 2014). Direct
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`liability is inapplicable here as the parties do not dispute that the actual sender of the text was not
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`Postmates, but Bird Dog, a third party. See id. Thus, for Rogers’ SAC to survive dismissal, he
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`has to have alleged facts plausibly suggesting that Postmates was vicariously liable for the
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`messages sent by Bird Dog. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 877 (9th Cir. 2014)
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`(“Although [defendant] did not send any text messages, it might be vicariously liable for the
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`messages sent by [a third party].”). “[A] defendant may be held vicariously liable for TCPA
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`violations where the plaintiff establishes an agency relationship . . . between the defendant and a
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`third-party caller.” Id. at 879.
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`“Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests
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`assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to
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`the principal’s control, and the agent manifests assent or otherwise consents to so act.” Jones v.
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`Royal Admin. Servs., 887 F.3d 443, 448 (9th Cir. 2008) (discussing agency in the context of a
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`TCPA lawsuit) (quoting Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045, 1054 (9th
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`Cir. 2017) (quoting Restatement (Third) Of Agency § 1.01 (Am. Law Inst. 2006) (the
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`“Restatement”))). “For an agency relationship to exist, an agent must have authority to act on
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`behalf of the principal and ‘[t]he person represented [must have] a right to control the actions of
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`the agent.’” Mavrix, 873 F.3d at 1054 (emphasis added) (quoting Restatement § 1.01 cmt. c). “In
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`Case 3:19-cv-05619-TSH Document 41 Filed 07/09/20 Page 6 of 15
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`determining whether vicarious liability may be imposed, the extent of control exercised by the
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`principal is the essential ingredient.” Jones, 887 F.3d 443 at 450 (citation and internal quotation
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`marks omitted).
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`“A plaintiff can establish an agency relationship, and therefore vicarious liability under the
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`TCPA, using the ‘bedrock theories of agency,’ actual authority, apparent authority, and
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`ratification.” Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., 2018 WL 3707283, at *3 (N.D.
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`Cal. Aug. 3, 2018) (citing Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 449 (9th Cir. 2018); In
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`re Joint Petition filed by Dish Network, LLC 28 FCC Rcd. 6574, 6586-87 (2013)). The Court will
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`discuss each of these in turn.
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`1.
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`Actual Authority
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`Actual authority may be express or implied. Express actual authority derives from an act
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`specifically mentioned to be done in a written or oral communication. NLRB v. Dist. Council of
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`Iron Workers, 124 F.3d 1094, 1098 (9th Cir. 1997) (“Iron Workers”) (citing Hawaiian Paradise
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`Park Corp. v. Friendly Broadcasting Co., 414 F.2d 750, 755 (9th Cir. 1969)). “Implied actual
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`authority comes from a general statement of what the agent is supposed to do; an agent is said to
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`have the implied authority to do acts consistent with that direction.” Id. at 1098 (citing Hawaiian
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`Paradise Park, 414 F.2d at 755).
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`Here, Rogers does not allege that Postmates exercised the control over Bird Dog necessary
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`to establish Bird Dog as Postmates’ agent. Rogers alleges that Postmates contracted with Bird
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`Dog “to promote its mobile application and driver opportunities to as many individuals as
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`possible” through a marketing campaign. SAC ¶ 12. He also alleges that Postmates “specifically
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`oversaw, monitored, tracked, and realized and appreciated the results of” the campaign. Id. ¶ 18
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`(emphasis added). However, he alleges that it was Bird Dog that “conducted” and “performed”
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`the campaign. Id. ¶ 17, 20. And he does not dispute that Bird Dog was the party who sent the
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`text. Id. ¶¶ 17, 18. Absent from the SAC are allegations that Postmates exercised any control
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`over the “manner and means” in which Bird Dog executed the campaign on its behalf (the SAC in
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`fact makes no allegations of “control”). A plaintiff must allege facts which, if true, would show
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`that a defendant had the right to control the caller and the manner and means of the calls made.
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`Naiman v. TranzVia LLC, 2017 WL 5992123, at *6 (N.D. Cal. Dec. 4, 2017 (citing Thomas, 583
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`Fed. Appx at 679-80). There are no allegations here that Postmates directed Bird Dog to send text
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`messages as part of the marketing campaigns; that it dictated the content of any message or other
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`communication sent by Bird Dog; that it identified or otherwise controlled to whom or how or
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`when Bird Dog sent such communications; that it equipped Bird Dog with any technological
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`capability or other insider information necessary for executing the marketing campaign; or even
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`that it “controlled” or “directed” Bird Dog in any way. There is no allegation that Postmates
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`communicated to Bird Dog that text messages could or should be part of the marketing campaign.
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`The most substantive allegation concerning the contours of the relationship between Postmates
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`and Bird Dog is the allegation that Postmates contracted with Bird Dog, but “[a]n allegation of a
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`beneficial contractual relationship alone is insufficient to establish agency.” Trenz v. Sirius XM
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`Radio, Inc., 2015 U.S. Dist. LEXIS 180811, *6 (citing Batzel v. Smith, 333 F.3d 1018, 1036 (9th
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`Cir. 2003) (noting that defendant’s receipt of a financial benefit from provided customer
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`information was insufficient to establish ratification), superseded by statute on other grounds as
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`stated by Breazeale v. Victim Servs., 878 F.3d 759, 766-67 (9th Cir. 2017); Chemtool Inc. v.
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`Lubrication Techs., Inc., 148 F.3d 742, 745 (7th Cir. 1998) (“While an agency relationship can be
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`created by contract or conduct, not all contracts create agency relationships and not all conduct
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`creates agency relationships.”)). There must also be control, the “essential ingredient” in the
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`make-up of vicarious liability. Jones, 887 F.3d at 450. Rogers’ allegation that Postmates
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`“oversaw,” “monitored,” and “tracked” the “results” of the marketing campaign does not amount
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`to an allegation that it “controlled” Bird Dog in executing that campaign. Postmates and Bird Dog
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`were in a commercial relationship; the former was paying the latter for its marketing services. It is
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`only natural that Postmates would want to keep an eye on the marketing campaign results to know
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`whether it was paying off; that doesn’t mean it was directing things. (If Rogers believed
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`Postmates was, he could have alleged that.)
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`Naiman is instructive here. There, the plaintiff alleged he had received a call from a
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`telemarketer which violated the TCPA. 2017 WL 5992123. The plaintiff alleged that the
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`defendant had hired the telemarketer, a third-party, to act as its agent in marketing its payment
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`services. He alleged that the defendant “had control over [the third-party’s] actions on its behalf,”
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`“limited the types of business [the telemarketer] could solicit,” “restricted the geography within
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`which [the telemarketer] could promote [the defendant’s business],” “decided whether . . . it would
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`accept a customer from [the telemarketer],” “instructed [the telemarketer] with respect to the
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`volume of calling,” and “had day-to-day control over [the telemarketer’s] actions.” Id. at *11.
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`The court found these allegations, which the plaintiff asserted showed that defendant had control
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`over the telemarketer’s actions on its behalf, were insufficient to demonstrate that the plaintiff had
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`“‘had control over’” the telemarketer’s actions and thus were insufficient to demonstrate a
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`plausible claim for relief based on vicarious liability. Id. The court reasoned that the allegations,
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`“without any facts showing how [defendant] did those things or how it knew those things, or what
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`facts the allegations are based on — are not facts that allow the court to draw the reasonable
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`inference that [defendant] is vicariously liable for [the telemarketer’s] alleged misconduct.” Id.;
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`see also id. (“plaintiff does not point to any facts that support the conclusory allegations”)
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`(emphasis in original). Here, Rogers similarly has not alleged any facts that support the inference
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`that Postmates exercised any control over Bird Dog or Bird Dog’s marketing campaign. Yet
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`Rogers complaint is even more lacking: he doesn’t even make the conclusory allegation of control.
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`Furthermore, even if Rogers had alleged that Postmates exercised some degree of control
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`over Bird Dog, to state a plausible claim based on actual authority, a plaintiff must also allege
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`facts showing that the defendant had the right to control “the manner and means of the calls []
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`made. Id. at *10 (citing Thomas, 582 Fed. Appx 678, 679-80); Thomas v. Taco Bell Corp., 879 F.
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`Supp. 2d 1079, 1084 (C.D. Cal. 2012) (no vicarious liability where plaintiff failed to show
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`defendant “controlled the manner and means by which the text message was created and
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`distributed”). Rogers has not alleged that Postmates controlled the manner and means by which
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`Bird Dog sent the text; he makes no allegation that Postmates was involved at all in Bird Dog’s
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`preparation and transmission of the text or any other communication.
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`Rogers argues in opposition that “the Complaint specifically alleges that [Postmates] acted
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`with express actual authority over Bird Dog.” Opp’n at 4. He cites to paragraphs 12 and 13 of the
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`SAC, see Opp’n at 4-5, but neither of those allegations speaks to any authority Postmates
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`exercised over Bird Dog:
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`12. In an effort to advertise its delivery service and encourage
`Plaintiff and the other members of the putative Class to sign-up to
`become a part of its driver network to provide food deliveries,
`Defendant contracted with Bird Dog[], one of its marketing agents, to
`promote its mobile application and driver opportunities to as many
`individuals as possible.
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`13. As part of these efforts, Bird Dog blasted several thousands if not
`millions of automated text messages encouraging individuals to sign
`up for Defendant’s delivery-driver network.
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`Neither is of any consequence Rogers’ allegation that, “[i]n sending the automated text messages
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`at issue[], Bird Dog was at all times acting on behalf of [Postmates] and solely for [Postmates’]
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`benefit pursuant to a marketing campaign.” Opp’n a 5 (quoting SAC ¶ 20). To the extent Rogers
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`means to allege that Bird Dog was acting on Postmates’ behalf as an agent, that allegation is
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`conclusory and unsupported by factual allegations, and is entitled to no weight. To the extent
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`Rogers alleges that Bird Dog acted “solely for” Postmates’ benefit, that shows nothing more than
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`that Bird Dog was doing the job which Postmates purportedly hired it to do. But again, “[a]n
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`allegation of a beneficial contractual relationship alone is insufficient to establish agency.” Trenz,
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`2015 U.S. Dist. LEXIS 180811, at *6; see also Warciak v. Subway Restaurants, Inc., 949 F.3d
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`354, 357 (7th Cir. 2020) (rejecting claim that a commercial contractual relationship between two
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`businesses is tantamount to an agency relationship sufficient to plead vicarious liability under the
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`TCPA).
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`Rogers points to Abante Rooter in his Opposition. 2020 WL 1876240. There, one of two
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`co-defendants moved for dismissal on the ground that it was the wrong party to be sued for a
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`TCPA violation. The court decided that the plaintiff had “plausibly alleged a basis for holding”
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`that the defendant was liable for the TCPA claims in the complaint. Id. at * 1-2. There, however,
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`the plaintiff had expressly alleged that the two defendants, similarly named (“First Standard
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`Financial Company, LLC” and “First Standard Finance Company, LLC”), were “affiliates, owned
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`and operated as a joint enterprise.”1 Id. at *2. That sort of allegation carries more weight because
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`1 The complaint in that case also alleged that defendants were both New York financial services
`companies with the same address registered with the New York Secretary of State. See No. 18-
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`Case 3:19-cv-05619-TSH Document 41 Filed 07/09/20 Page 10 of 15
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`mutual control is an element essential to a joint venture. Shell Oil Co. v. Prestidge, 249 F.2d 413,
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`415 (9th Cir. 1957) (“Thus a contract between the parties, a common purpose, a community of
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`interest, mutual control over the subject matter of the enterprise or over the property engaged
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`therein, have been held to be elements necessary to the existence of a joint venture.”). By
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`contrast, Rogers alleges that Postmates contracted with Bird Dog for Bird Dog to conduct its
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`marketing.
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`Because Rogers fails to allege that Postmates controlled Bird Dog or the manner and
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`means in which Bird Dog allegedly transmitted the unlawful text, he fails to plausibly allege that
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`Bird Dog was acting as Postmates’ agent. Thus, he has not plausibly alleged that Bird Dog had
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`actual authority.
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`2.
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`Apparent Authority
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`“Apparent authority arises from the principal’s manifestations to a third party that supplies
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`a reasonable basis for that party to believe that the principal has authorized the alleged agent to do
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`the act in question.” Iron Workers, 124 F.3d at 1099 (citing NLRB v. Donkin’s Inn, 532 F.2d 138,
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`141 (9th Cir. 1976), cert. denied, 429 U.S. 895 (1976)).
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`Rogers argues that the SAC plausibly alleges liability based on apparent authority because
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`it alleges that the text Bird Dog sent to him referenced Postmates by name, see SAC ¶ 14, and that
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`the link provided in the text message directed the visitor to Postmates’ webpage, see id. ¶¶ 16-18.
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`But “[a]pparent authority ‘must be established by proof of something said or done by the principal
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`on which a third party reasonably relied’; it ‘cannot be established merely by showing that the
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`purported agent claimed authority or purported to exercise it.’” Pascal v. Agentra, LLC, 2019 WL
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`5212961, at *4 (N.D. Cal. Oct. 16, 2019) (quoting Iron Workers, 124 F.3d at 1099). Apparent
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`authority here would need to be established by alleging that Postmates said or did something upon
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`which Rogers relied. But Rogers “does not [plausibly] allege that he ‘reasonably relied, much less
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`to his detriment, on any apparent authority with which [Postmates] allegedly cloaked’ [Bird Dog],
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`the entity responsible for creating and sending the text messages.” Linlor v. Five9, Inc., 2017 WL
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`CV-05003-JD, Dkt No. 40, ¶¶ 5-8.
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`Case 3:19-cv-05619-TSH Document 41 Filed 07/09/20 Page 11 of 15
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`2972447, at *4 (S.D. Cal. July 12, 2017) (quoting Thomas, 582 Fed. Appx. at 679-80). Thus, the
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`“principal’s manifestations” are lacking.
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`Rogers returns to the argument he made in opposition to the last motion to dismiss, that the
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`link in Bird Dog’s text and URL demonstrated that Bird Dog had access to the Postmates
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`“information and systems.” The FCC has found that “apparent authority may be supported by
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`evidence that the seller allows the outside sales entity access to information and systems that
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`normally would be within the seller’s exclusive control, including: access to detailed information
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`regarding the nature and pricing of the seller’s products and services or to the seller’s customer
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`information.” In re DISH Network, LLC, 28 FCC Rcd 6574, 6592. Rogers disagrees with the
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`Court’s finding in the last order that “the fact that the link in the text directed to the Postmates
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`website [is not] proof that the sender had access to Postmates’ ‘information and systems.’” ECF
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`No. 33 at 7. Rogers asserts that “the only way someone could have been taken to” the specific
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`URL alleged in the SAC “was by clicking the link in the text message, and the only person who
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`was sent that text message was Plaintiff.” Opp’n at 8. Indeed, that appears to be the case. But
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`that fact does not mean that Bird Dog has access to unique and detailed information. Rogers
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`seems to conclude that because the URL contained campaign parameters tacked on to a destination
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`URL for a publicly-available Postmates’ webpage, Postmates either added the parameters itself or
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`the parameters necessarily consisted of some information that “normally would be within the
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`[Postmates’] exclusive control.” But the first proposition is not alleged and is not reasonably
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`inferable from what is alleged, and the second – also not alleged – is implausible. The destination
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`page in the URL is a public page on Postmates’ website; anybody can navigate to it. Source,
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`medium, campaign, and term parameters can then be added to the destination URL by anyone, and
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`no special information is required to do so. The parameters here could just as easily have been
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`added to the destination URL by Bird Dog, and Rogers has not plausibly alleged that Postmates
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`had any control in preparing the texts, and indeed to the contrary has alleged that Postmates hired
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`Bird Dog to conduct the marketing campaign. Rogers fails to explain how any of the information
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`in the parameters “would need to be retrieved from [Postmates’] systems,” Opp’n at 9, as it is all
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`information which Bird Dog could have assigned itself (e.g., Bird Dog could have assigned for
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`Case 3:19-cv-05619-TSH Document 41 Filed 07/09/20 Page 12 of 15
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`utm_source, “birddogmedia”). Rogers also fails to explain how the utm_term, which is simply a
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`numeric value, indicates access to Postmates’ systems and information2; Bird Dog could have
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`assigned unique numeric values for each individual to whom it sent a text.
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`The SAC does not allege facts plausibly suggesting Bird Dog acted with apparent
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`authority.
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`3.
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`Ratification
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`Ratification is “‘the affirmance of a prior act done by another, whereby the act is given
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`effect as if done by an agent acting with actual authority.’” Kristensen v. Credit Payment Servs.
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`Inc., 879 F.3d 1010, 1014 (9th Cir. 2018) (quoting Restatement § 4.01(1)). It “may create an
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`agency relationship when none existed before if the acts are done by an actor . . . who is not an
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`agent but pretends to be.” Henderson v. United Student Aid Funds, Inc., 918 F.3d 1068, 1074 (9th
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`Cir. 2019) (citation and quotation marks omitted).
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`“Ratification does not occur unless . . . the act is ratifiable as stated in
`§ 4.03.” Id. § 4.01(3)(a). An act is ratifiable “if the actor acted or
`purported to act as an agent on the person’s behalf.” Id. § 4.03.
`Therefore, “[w]hen an actor is not an agent and does not purport to be
`one,” the doctrine of ratification does not apply. Id. § 4.03 cmt. b.
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`Kristensen, 879 F.3d at 1014. There are two ways a principal might ratify a third party’s acts: by a
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`“knowing acceptance of the benefit” or through “willful ignorance.” Henderson, 918 F.3d at
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`1073-74 (citing Restatement § 4.01 cmt. d). To prove knowing acceptance, there must be “an
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`objectively or externally observable indication . . . that the principal has exercised choice and has
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`consented” to the acts of the purported agent. Restatement § 4.01 cmt. d. Consenting to the act
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`requires the principal have “knowledge of material facts,” or “actual knowledge.” Restatement §
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`4.06. A principal that is “willfully ignorant” might not know the material facts, but ratifies “with
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`awareness that such knowledge was lacking.” Restatement § 4.01 cmt. b. “In effect, the principal
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`2 Rogers argues that “Bird Dog [] must have had access to Postmates’ ‘information
`and systems’ to obtain the code that correlated specifically to Plaintiff on Postmates’ system (in
`order to then insert that code into the pertinent part of the postmates.com URL that Plaintiff would
`be directed to if he clicked the link).” It is not entirely clear whether Rogers means to argue that
`the utm_term values came from Postmates’ systems, but even if that were the case, the SAC does
`not allege that Bird Dog obtained any information from Postmates that was used in the URL or in
`the marketing campaign more generally.
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`can ratify the act of a third party—thereby making the third party the principal's agent—even if it
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`does not