March 5, 2015
This Tuesday, Mr. Noah Duguid filed a class action lawsuit in California federal court against Facebook for allegedly sending automated text messages to mobile phone users without their prior express consent in violation of the Telephone Consumer Protection Act (“TCPA”).
Mr. Duguid’s claim was initially brought in federal court in New York City last November. However, the plaintiff voluntarily dismissed the suit this week and refiled in the Northern District of California after Facebook argued that the Southern District of New York was an improper venue.
The stage is set for a TCPA legal battle in San Francisco. But what prompted this text messaging lawsuit against the world’s largest social networking service?
Facebook Friends No More
As a security feature, Facebook allows its users to activate certain login alerts that notify users when their accounts are being accessed from a new device (computer, smartphone, tablet, etc.). For many users, Facebook purportedly sends the following text message: “Your Facebook account was accessed from [Internet browser] at [time]. Log in for more info.”
Tuesday’s complaint does not specify whether the plaintiff was a Facebook user. Nevertheless, it claims that Mr. Duguid started receiving text messages from the company in January of last year, despite the fact that he never provided his phone number to Facebook. After receiving text messages from Facebook, the plaintiff alleges that he opted out of the social network’s text messaging program multiple times and received assurances that the feature had been disabled, but he says that the texts kept coming.
After receiving these messages, Mr. Duguid filed a TCPA class action against Facebook on behalf of those who: (1) never provided their mobile phone number to Facebook but received text messages from the company by means of an automatic telephone dialing system (“ATDS”); or (2) notified Facebook that they no longer wished to receive test messages but still continued to receive them.
The suit calls for statutory damages of $500 for each violation of the TCPA. For instances where the text messages were knowingly or willfully delivered by ATDS, Mr. Duguid is seeking treble damages ($1,500 per text). Although plaintiff’s counsel is not aware of exactly how many messages Facebook has delivered in the aggregate, the complaint estimates that several thousand or more texts were sent in this manner, which could total over $5 million in statutory damages.
TCPA Basics
The TCPA allows certain individuals to file lawsuits (including class actions) to collect damages after receiving text messages delivered by ATDS. These plaintiffs may show actual damages or, like Mr. Duguid, seek statutory damages ranging from $500 to $1,500 per violation.
Although certain protections were once afforded to companies delivering automated text messages to consumers with whom they had an established business relationship, this exception was eliminated by new rules promulgated by the Federal Communications Commission (“FCC”) on October 16, 2013. Now, prior express written consent is required for all autodialed commercial text messaging.
The Risk Is Real
As Facebook’s latest legal troubles demonstrate, even relatively small ventures into automated text messaging can lead to big TCPA legal issues. The surest way to avoid a TCPA class action or regulatory investigation is to never stray from best practices in the first place.
If you are interested in speaking with experienced telemarketing and Internet marketing counsel versed in the intricacies and nuances of the TCPA, or if you are facing TCPA class action litigation or regulatory investigation, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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Defending a TCPA Lawsuit: Do’s and Don’ts
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TCPA Class Action Lawsuit Defense: A Primer
