January 30, 2019
On January 22, 2019, Carol Mazzariol (“Plaintiff”) filed a putative Telephone Consumer Protection Act (“TCPA”) class action lawsuit against medical spa company, MedSpa Del Mar, LLC (“MedSpa”). The TCPA text message lawsuit was filed in the United States District Court for the Southern District of Florida and is captioned Carol N. Mazzariol v. MedSpa Del Mar, LLC, Case No. 4:19-cv-10015-KMM.
What was the basis for bringing this TCPA text messaging lawsuit?
Plaintiff’s TCPA Text Message Lawsuit Claims
In her TCPA text lawsuit, Plaintiff alleged that MedSpa purportedly sent unsolicited text messages to her cellular telephone using an automatic telephone dialing system (“ATDS”) without obtaining her prior express written consent as required by TCPA regulations. In particular, Plaintiff alleged in this TCPA text message lawsuit that beginning on or about December 5, 2018, MedSpa sent her at least two text messages from the “long code” 239-302-3547 advertising MedSpa’s medical spa services. Plaintiff alleged that the “long code” used by MedSpa allowed it to send text messages en masse and was meant to “deceive recipients into believing that the message was personalized and sent from a telephone number operated by an individual.”
Plaintiff claims that the subject text messages were sent using an ATDS because the system used by MedSpa allegedly had the capacity to “store telephone numbers using a random or sequential generator, and to dial such numbers without human intervention.” As we have previously blogged, this definition is currently being revisited by the Federal Communications Commission following the D.C. Circuit’s ruling in ACA International v. FCC.
Plaintiff seeks statutory damages on behalf of herself and the putative class (i.e., all others similarly situated) in an amount exceeding $5 million, as well as a mandatory injunction that would prevent MedSpa from sending future text messages in violation of the TCPA.
Avoiding TCPA Text Messaging Lawsuits
Text message marketing campaigns can increase brand awareness and sales through relatively inexpensive targeted advertising. Conversely, text message marketing campaigns that do not comply with applicable telemarketing laws, including the TCPA, can cripple a business. As such, marketers are well-advised to retain seasoned counsel to help assist them in navigating the nuances of state and federal telemarketing regulations.
If you are interested in learning more about telemarketing law or are a party to a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for information 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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