Attacks On Advertising Texting

Under the Telephone Consumer Protection Act (“TCPA”), telemarketing communications to cell phones are restricted, requiring written consent prior to sending text messages to consumers.   Not surprisingly, there has been a rise of lawsuits against companies sending unsolicited text messages to consumers over the past several years.

In an era of advanced and growing telecommunications and technologies, advertisers have a wide range of marketing platforms at their disposal.   As such, it is understandable why a faction of the public thinks they are losing control over what is marketed to them and how it is delivered. One area that has been a bone of contention for decades is unsolicited phone communications.  Now with cell phone use being such a prominent mode of everyday communication, there is an increase in pre-recorded robocalls and unsolicited text messages.  Unsolicited text messages are not only considered a nuisance and invasion of privacy, but they can also result in unwanted data charges by cellphone carriers.

Just last week, a consumer in Florida filed a lawsuit against Kohl’s department stores for sending multiple unsolicited coupon and advertising text messages.  The plaintiff alleges Kohl’s willfully and knowingly violated the TCPA by sending the text messages in question and seeks actual and statutory damages as well as an injunction barring Kohl’s from its continued use of an automatic dialing system to text messages without prior consent. 

This has become a common trend.  Recently, Freedom Mortgage unsuccessfully tried to defeat two class action lawsuits related to TCPA violations, and a New Jersey night club was hit with a class action lawsuit with allegations that D’Jais LLC sent numerous text messages marketing events and promotions to consumers.  Over the past few years, other major retailers such as Bed Bath & Beyond and Lord & Taylor have also been sued for TCPA violations pertaining to unsolicited texts.

Damages for these TCPA violations theoretically can be quite high.  In the aforementioned case against D’Jais, the plaintiffs are asking the court to award $500.00 for each negligent violation and $1,500.00 for each willful and/or knowing violation over a four-year period.  If the plaintiffs can prove their damages, it does not take much more than rudimentary math to conclude that the damages award could be significant. 

However, the cost and risks of litigation in relation to what can be collected in damages is always a consideration.  In July, a federal court in New Jersey approved a $1.4 million settlement for unsolicited text messages sent by Bloomingdales. Bloomingdales was sued by a class consisting of its Loyalist Program customers who claimed they never gave the department store giant consent to send promotional offers via text messaging.  At the end of the day, most of the class participants are going to end up with a $25.00 check or a $50.00 voucher, with the lead plaintiff receiving $10,000.00.  

These cases are a reminder for businesses who market through text messaging to ensure they have received written consent from the people they contact.  For consumers, it is a reminder that they have rights and remedies under the law. 

Categories: Business Law

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