Summary Judgment Granted: Recruiting Text Not Telemarketing Or Advertisement Under TCPA

A recent TCPA decision granting defendant's motion for summary judgment presents interesting issues regarding the definitions of "advertisement" and "telemarketing" and the scope of consent.  In Payton v. Kale Realty, LLC, Case No. 13 C 8002 (N.D. Ill.), Plaintiff brought a TCPA claim against Kale Realty, LLC, a real estate brokerage firm, after Plaintiff received a text message on his cellular phone which read, "Kale Realty named 2013 Top 100 Places to Work by Tribune — We pay 100% on sales — reply or visit http://joinkale.com to learn more! Rply 69 to unsubscribe."  Plaintiff and Defendant had a pre-existing relationship.  Approximately two years before the text message, Plaintiff and Defendant negotiated a potential merger of their respective businesses, which never came to fruition.  The parties had exchanged many emails over the course of those negotiations, however, and at least three of those emails contained Plaintiff's cell phone number in his email