Victoria’s Secret and the United States Supreme Court (“SCOTUS”) made recent news in connection with the violation and litigation of the Telephone Consumer Protection Act (“TCPA”). The TCPA is one of the lesser-known federal consumer rights laws. Many consumers know they have rights when it comes to phone calls and text messages, beyond a do-not-call list. In fact, consumer’s rights are easy to learn and violations are easy to spot when you know what to look for. The TCPA restricts telemarketing calls and the use of automatic dialing systems, prerecorded voice messages, text messages and faxes. The restrictions protect consumers from unsolicited advertisements and individuals with whom we do not otherwise have an established business relationship. Violations of the TCPA are often litigated in class action lawsuits and a recent SCOTUS opinion better protects plaintiff consumers.
Victoria’s Secret customers may be more cautious when agreeing to receive the company’s ad texts.
The TCPA restricts how a company such as a clothing retailer may contact and communicate by text messaging. Consider the variety of occasions in which your favorite store could obtain, verify and retain your phone number. The click-wrap text at a point-of-sale purchase could include language in which you agree to receive a single or limited number of text messages to receive offers and information. What happens when you opt-in and consent to receive special deal texts, and you get more than you expected?
Victoria’s Secret is the named defendant in a proposed class action lawsuit for over texting. The plaintiff, a man from California alleges Victoria’s Secret violated the TCPA when it sent him just short of 100 text messages in one day. The opt-in message agreement the plaintiff entered into with the retailer was to receive no more than six text messages a month. The automated telephone dialing system used by Victoria’s Secret sent the plaintiff 97 text messages on one day in November 2015.[i]
The restrictions of the TCPA apply to a text messaging ad campaign.
The law generally prohibits phone calls to people, made by automatic telephone dialing systems or an artificial or prerecorded voice. There is an exception to the TCPA, if the call is placed for an emergency purpose or the caller has the prior express consent to initiate what some call “robo-calls.” The prior express consent element of the exception may be derived from the underlying existing relationship with the caller, such as between bank and credit card holder or cell phone provider and customer. In various communications sent to us by our service providers and banks, we might find fine print, which says we consent to receiving text messages when we agree to an offer or simply continue using the service.[ii]
Going beyond the limits of the consumer’s consent may violate the protective restrictions of the TCPA. The California plaintiff has a right to a private action against Victoria’s Secret and may be able to recover for any actual monetary loss in connection with the TCPA violation, as well as a statutory amount of $500 for each violation. If the plaintiff can prove that Victoria’s Secret willfully or knowingly violated their opt-in agreement and the TCPA, the court may award triple the damage award.[iii]
Class action litigation in TCPA cases and the recent SCOTUS landscape opinion.
The U.S. Navy contracted with a marketing company to send text messages to 18 to 24-year-olds who opted-in to receiving text messages. The company allegedly exceeded the scope of its op-in list of recipients and messages were sent to unintended recipients, well beyond the recipient age range limits.
In the Navy case, a full settlement offer was made to a named plaintiff, and the SCOTUS ruled that the defendants cannot rely on a settlement offer to one plaintiff, to argue that the claims of that plaintiff are then moot, because of the settlement offer, and seek dismissal of those claims. The SCOTUS relied on contract law principals to conclude that unaccepted settlement offers and unaccepted offers of judgment do not deprive a plaintiff of their interest in a lawsuit.[iv]
Companies defending against TCPA class action suits could previously expect to attempt to defeat a subject class action by offering a full settlement to the class representative. Under the new SCOTUS ruling, an unaccepted settlement offer will not prevent a consumer plaintiff from continuing to prosecute their claims against the TCPA violator, in individual and class action litigation.
Telemarketers using auto-dialers to call and text you their advertisements expect you to do nothing when they violate the TCPA. Prove them wrong. The Zamparo Law Group can help.
The Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs harmed by telemarketers violating the TCPA and other similar federal and state laws. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law and instead, use illegal tactics to market their products and services.
To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our Facebook, Twitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.
[i] Data Privacy and Security Insider, Victoria’s Secret hit with TCPA class action for text messages, by Kathryn Rattigan, Feb. 2, 2016.