Federal Court’s Certification of TCPA Class for Alleged Text Message Spam May Result in Numerous Copycat Class Actions

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The Telephone Consumer Protection Act, 42 U.S.C. §§ 227 et seq. (“TCPA”) provides for, inter alia, statutory damages to individuals who receive unsolicited telemarketing calls, unsolicited faxes, prerecorded calls or autodialed calls. The TCPA has been interpreted in recent years to also prohibit the sending of unsolicited text messages to personal cell phones – unless the message is sent for emergency purposes or the recipient has given his or her express consent to receive such messages.

The TCPA provides for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited message. In deciding whether to treble the statutory damages, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.  Considering that text message marketing campaigns often yield thousands to, in some cases, millions, of text messages, potential damages under the TCPA may escalate very quickly.

In the TCPA class action captioned Lee v. Stonebridge Life Insurance Company, Case No. 11-CV-00043, the Northern District of California recently certified a class of individuals who received text messages from a specific telephone number during a five day period in late 2010.  The plaintiff asserted that she received an unsolicited text message to her mobile phone directing her to call a specific telephone number to claim a reward (a Walmart gift card).  The defendants in the action are a life insurance company (“Stonebridge”) and its third party marketing contractor that provided lists of potential customer telephone numbers.  The marketer then contracted out to numerous third parties to generate the actual text messages allegedly sent to class members.

In its opposition to plaintiff’s motion for class certification, Stonebridge argued that there were numerous issues that should preclude class certification because there was no evidence whatsoever that: (a) Stonebridge sent the actual text messages; (b) the text messages were specifically sent by the co-defendant marketer on Stonebridge’s behalf; (c) an automatic telephone dialing machine was used to send the text messages; or (d) all class members even received the subject text messages.  In its February 12, 2013 Order, the Court held that the issues raised by Stonebridge go to the merits of the action and that, while the plaintiff may face numerous substantive hurdles in ultimately establishing liability against the defendants at trial, the defendants nonetheless were unable to point to any question of law or fact to preclude certification of the class.

Further, in what was a tremendous win for plaintiff and class counsel, Edelson McGuire LLP, the Court held that the plaintiff satisfied the statutory requirements for class certification. These requirements – which are given a “rigorous analysis” by courts pursuant to statute – permit a class action to proceed only where: (i) the class members are so numerous that joinder is impracticable; (ii) common questions of law or fact exist; (iii) the claims or defenses of the representative parties are typical of the class; and (iv) the representative parties will fairly and adequately protect the interests of the class. (Federal Rule of Civil Procedure, 23(a).)

The Northern District of California’s class certification in this action undoubtedly will inspire other potential class action plaintiffs, resulting in the commencement of similar class actions nationwide (or the push to settle pending TCPA class action lawsuits).

We have successfully defended – and are currently defending – TCPA class action lawsuits throughout the country.  If you require any assistance, please e-mail us at newsletter@kleinmoynihan.com, or call us at (212) 246-0900.

The information contained herein should not be construed to be formal legal advice or the formation of a lawyer/client relationship.

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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