On October 16, 2013, new FCC regulations will go into effect that introduce the requirement of prior express written consent for certain types of commercial phone calls and text messages to consumers. Among other things, the new rules require that marketers have prior express written consent to autodial or send pre-recorded messages to cell phones. The rules, which put the burden of proof for compliance on the marketer/caller, come with stiff penalties ($500.00 – $1,500.00 per call/text) and will open the door for numerous consumer class action lawsuits.[Read More]
On October 16, 2013, new FCC regulations will go into effect that introduce the requirement of prior express written consent for certain types of commercial phone calls and text messages to consumers. Among other things, the new rules require that marketers have prior express written consent to autodial or send pre-recorded messages to cell phones. The rules, which put the burden of proof for compliance on the marketer/caller, come with sti penalties ($500.00 – $1,500.00 per call/text) and will open the door for numerous consumer class action lawsuits.[Read More]
The Federal Communications Commission (“FCC”) recently issued a declaratory ruling providing clarity on the scope of liability for fax advertisers under the Telephone Consumer Protection Act (“TCPA”). The FCC’s TCPA fax ruling responds to broad concerns that advertisers unjustly assume the liability for fax broadcasters that exceed the parameters of the terms of their marketing agreements. The new guidance clarifies that an advertiser is not a “sender” within the meaning of the statute where a fax is sent without the subject advertiser’s approval.
How did the FCC’s TCPA fax ruling clarify the scope of liability?[Read More]
Telemarketing and text message marketing can serve as an effective and economical means to engage with prospective and current customers. However, lawsuits alleging violation of the main federal statute governing these forms of marketing, the Telephone Consumer Protection Act (“TCPA”), have exploded in recent years. The financial exposure associated with TCPA litigation can be substantial. Against this backdrop, the most sound advice that any experienced telemarketing attorney can provide to a business that plans to market through use of these media is to stress the importance of developing practices and procedures designed to: (i) minimize the risk that such a lawsuit gets filed in the first place; and (ii) maintain proper records that will ensure an effective defense in the event that a suit does get filed.
What are some key TCPA litigation defenses?[Read More]
March 26, 2019
On November 8, 2018, Plaintiff John Geraci (“Geraci”) commenced a Telephone Consumer Protection Act (“TCPA”) lawsuit in the United States District Court of New Jersey. The named defendant in the TCPA litigation is Red Robin International (“Red Robin”), which operates the chain of Red Robin Gourmet Burgers and Brews casual dining restaurants.
The Geraci lawsuit is based on alleged violations of the TCPA and seeks class action certification. The TCPA prohibits the placing of any telephone call or the sending of any text message, using an automatic telephone dialing system, to any telephone number assigned to a cellular telephone service, without obtaining the receiving party’s prior express written consent. 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA does not address a consumer’s right to revoke previously provided consent. Nevertheless, courts and the Federal Communications Commission have uniformly interpreted TCPA regulations to permit such revocation.
Why did Red Robin Seek to Change Venue after being Sued?
January 2, 2019
The number of Telephone Consumer Protect Act (“TCPA”) lawsuits filed each year is staggering. Given the prospect of crippling financial exposure that TCPA litigation presents, formulating a sound approach to both prevent and defend these actions must be an active and ongoing part of the business strategy of any company that contacts consumers via telephone, text message or facsimile.
What are some key TCPA litigation defenses?
October 12, 2018
A lawsuit in the United States District Court for the Southern District of Florida involving allegations of widespread text messaging-related violations of the Telephone Consumer Protection Act (“TCPA”) was recently settled. Because of the nature and commonality of the marketing practices at issue, this TCPA litigation ultimately settled on a class-wide basis.
What were the allegations at issue in the TCPA litigation?
December 5, 2014
On November 30, 2014, a class action complaint was filed in the United States District Court for the Southern District of Florida against Domino’s Pizza, LLC (“Domino’s”) and mobile marketer MoGreet, Inc. (“MoGreet”) alleging violations of the Telephone Consumer Protection Act (“TCPA”). Specifically, the complaint alleges that Domino’s and MoGreet violated the TCPA by sending text message advertisements to consumers after receiving their “STOP” instructions. The named plaintiff seeks to certify four (4) separate classes in the action, and has already filed a motion for class certification.
TCPA Class Action Allegations Against Domino’s
According to the complaint, Domino’s, through its mobile marketer MoGreet, sends multiple text messages to consumers offering discounts or deals on Domino’s pizza. Although these consumers may have initially given consent, according to the complaint, Domino’s and MoGreet continue to send text message advertising to consumers even after receiving a proper “STOP” command. With respect to the class representative, according to the complaint he received a text message from MoGreet offering Domino’s pizza discounts after sending a “STOP” message, and only one day after MoGreet had settled a separate TCPA class action lawsuit for $16 million on behalf of itself and, among others, Domino’s.
TCPA Putative Class
The complaint seeks certification for 4 classes and one sub-class. All proposed classes are nationwide, and seek potential plaintiffs who received text message advertisements from MoGreet, or on behalf of Domino’s, between March 6, 2014 and the date that the classes are certified by the Court. Additionally, in what has become a typical move by class action plaintiffs, a motion for class certification has already been filed. The filing was done to prevent either Domino’s or MoGreet from mooting the litigation by offering the class representative full relief prior to answering the complaint. The motion for class certification expressly requests that the motion be stayed by the Court until the plaintiff has had an opportunity to engage in discovery.
Although in its early stages, this TCPA class action may subject Domino’s and MoGreet to significant monetary damages. The fact that MoGreet allegedly continued to send text messages in violation of the TCPA after settling another nationwide TCPA class action may affect the impact of a damages assessment, as the violation may appear willful to a court. As we have previously blogged, TCPA lawsuits are on the rise and it is important that businesses engage in telemarketing best practices in an effort to avoid a TCPA lawsuit.
This topic should be of interest to any company or individual engaging in text message marketing and telemarketing, as well as corporate and in-house counsel.
If you are interested in learning more about this topic, are facing a TCPA class action lawsuit or need to review your telemarketing practices, please e-mail us at email@example.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.