TCPA Class Action Certified Against Retailer that Sent Text Messages to VIP Customers

1225932_53183171In an Illinois federal action that has been heavily litigated for over a year and has gone through several named plaintiffs, a magistrate judge recently recommended that the putative class be certified against a popular Chicago retailer, Akira, which was charged with violating the Telephone Consumer Protection Act (“TCPA”) for using an automated telephone dialing system to send text message marketing to its customers.

Can We Get a New Plaintiff? Anyone, Anyone?

The first named plaintiff in the case turned out to be a partner in the law firm that filed the lawsuit. Rather than the law firm getting disqualified as counsel (and losing out on the potential windfall of attorneys’ fees through a settlement with the defendant or a victory at trial), the law firm sent an email blast to the class seeking a replacement plaintiff (a questionable strategy in and of itself).  The replacement plaintiff turned out to be someone who never even received the subject text messages.  After she dropped out of the case, she was replaced by the latest (and current) named plaintiff who, according to the magistrate judge, apparently is an adequate class representative, despite the fact that the defendant may be able to establish that she actually consented to receive marketing text messages when she signed up for a customer VIP card to receive shopping discounts.

Class Certification and its Ramifications

In certifying the class, the magistrate judge noted that class certification is “normal” in TCPA litigation because main questions are common to all recipients of mass texts, calls or faxes.  Nevertheless, the judge pointed out that in certain cases, where the defendant is able to prove that a large number of the putative class consented to be contacted through their mobile phones, class certification would be improper.  The defendant here only produced evidence of consent regarding the latest plaintiff which, questionably, the judge deemed insufficient to displace her as class representative.

Settlement often follows a court’s favorable decision on class certification.  However, since this decision came in the form of a magistrate judge’s “report and recommendation” to the actual judge trying the case, it will be interesting to see whether Akira files its written objections next week.  If it does, the judge will make a de novo determination on the motion.  Since the judge already has given plaintiff’s counsel numerous opportunities to keep the case alive, it is doubtful that the judge will do anything other than adopt the magistrate judge’s decision.   Most likely, this case will soon end in settlement.

If you are interested in learning more about this topic or need to review your marketing practices, please e-mail us at, 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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David Klein

David Klein is one of the most recognized attorneys in the 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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