- July 12, 2012
- Posted by: Seth Heyman
- Categories: Business Law, Marketing & Advertising Law
A strip club called the Playhouse has also been sued for allegedly sending unsolicited text advertisements to potential customers using an automated telephone dialing machine in violation of the Telephone Consumer Protection Act (TCPA). While still being litigated, the Playhouse case demonstrates how easy it is to state a claim under the TCPA. The club’s owners filed a motion to dismiss, arguing that the plaintiff had not alleged what numbers were called or whether the Playhouse stopped sending messages upon consumer requests.
The court denied the motion, finding that the only facts necessary for the plaintiff to state a claim is that he never gave the Playhouse permission to text his cell phone, and that it used an automated dialing device. The Plaintiff did not need to identify the specific phone number called, or the identities of the putative class members. Instead, it was sufficient for plaintiff to allege the dates and content of the messages he received from a 773 telephone number, that numerous other persons received the same text to their cell phones, and plaintiff never gave the sender his phone number.
Another class action was recently brought against a group of California car dealerships that allegedly texted consumers without their prior express consent. In that case, the plaintiff claimed damages in excess of $5 million, based on the number of texts that potentially were sent. As with a similar TCPA lawsuit against Twitter, in this case the plaintiff alleged that the dealership also violated the law when it sent a confirmation text in response to his opt-out request. The case settled for $49,100.
These cases are yet another reminder that companies must obtain appropriate consent to send text messages to consumers, and should also think twice before sending a text confirming an opt-out request.