Hooters Loses Spokeo-Based Challenge to TCPA Lawsuit

Print Friendly, PDF & Email

November 21, 2016

tcpa-lawsuitHooters of America, LLC (“Hooters”) recently lost a challenge to a federal lawsuit brought in connection with allegations that its text message advertisements violated the Telephone Consumer Protection Act (“TCPA”).  The court rejected Hooters’ argument that the plaintiff lacked standing to bring the TCPA lawsuit, an argument premised on the U.S. Supreme Court’s (“SCOTUS”) recent decision in Spokeo, Inc. v. Robins.

Why did the Court reject the Spokeo challenge?

Hooters’ argued that the plaintiff did not have standing to bring a TCPA claim because he had not suffered an injury in fact, a constitutional threshold requirement reinforced by the Spokeo decision.  According to Hooters’ argument, Plaintiff merely alleged that he had been the victim of a procedural violation of the TCPA namely, the receipt of a single text message advertisement after withdrawal of consent.  The Court rejected this argument, however, reasoning that Congress has determined that receipt of even one call to one’s cellphone without consent is a sufficiently particularized injury for standing purposes, specifically noting that an invasion of privacy or any time wasted reading the text message is an adequately concrete injury.

A distinct split in authority is taking root in the aftermath of the Spokeo decision, particularly within the TCPA lawsuit space. Some courts have found that simply alleging receipt of calls in violation of the TCPA, without more, is insufficient to survive a Spokeo challenge.  However, others, like the court that ruled against Hooters, have been inclined to find that receipt of such a text message is precisely the injury that Congress intended to remedy through passage of the TCPA, and thus sufficient for Spokeo purposes.  It is, nevertheless, apparent that the relative strength of Spokeo-based challenges to TCPA claims will continue to remain unsettled and in flux until such time as SCOTUS is presented with an opportunity to revisit the issue.

Protect Your Business Against a TCPA Lawsuit

We have written extensively about increased interest, from regulators and class action attorneys alike, in telemarketing calls and text messages placed to cell phones.  Having lost its Spokeo-based challenge, and a related challenge to the sufficiency of the class claims at issue, Hooters could be exposed to hundreds of millions of dollars in liability.  This should serve to reinforce the notion that, in today’s regulatory environment, it is imperative to have telemarketing practices and procedures examined by experienced counsel in order to avoid potentially disastrous consequences in the event that a class action plaintiff or federal regulator brings a TCPA lawsuit for alleged telemarketing-related violations.

If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are facing an investigation from the FCC or other regulatory agency, 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.

Attorney Advertising

Federal Court Revises Suspended Judgment Against Text Message Marketing Company Principal

Trump’s Campaign Hit with TCPA Lawsuits for Text Message Marketing

FCC to Rigorously Enforce TCPA Political Robocall Text Message Regulations

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.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin