By Gonzalo E. Mon
Most marketers know they need to get consent before sending text messages. Despite this, the number of lawsuits involving (allegedly) unsolicited text messages has been growing in recent years, and many companies have paid millions of dollars to settle the suits. These settlement amounts have attracted the attention of class action lawyers, who see often these cases as a path to easy money. Sports teams have fallen victim to frivolous suits, too, but the LA Lakers just scored the legal equivalent of a slam dunk in a recent suit.
The Telephone Consumer Protection Act (the “TCPA”) generally makes it unlawful to send text messages to a person without express consent. The first lawsuits targeted campaigns in which companies sent text “spam” to consumers who had never signed up. Now, however, companies are getting sued even by people who did sign up. For example, a consumer who signed up to receive text messages from the Pittsburgh Penguins recently sued the team when they sent him more messages than they had originally advertised.
Many of these cases are brought by plaintiffs’ attorneys who are looking to force companies into paying money in a settlement. That places companies in a difficult position, even when they haven’t done anything wrong, because a settlement may be more appealing than dealing with the uncertain fate (and costs) associated with a lawsuit. Some companies, however, will fight. Fortunately, courts in some recent cases have taken a common sense approach to the laws. The latest beneficiaries of this approach are the Lakers.
During a Lakers game last year, the team invited fans to text a message for a chance to have it appear on the scoreboard. A fan texted a message, and received the following confirmation from the Lakers in return: “Thnx! Txt as many times as u like. Not all msgs go on screen. Txt ALERTS for Lakers News alerts. Msg&Data Rates May Apply. Txt STOP to quit. Txt INFO for info.” Shortly thereafter, the plaintiff filed a lawsuit arguing that the Lakers had sent the confirmation message without consent, in violation of the TCPA.
Applying a “common sense” reading of the TCPA, a California court determined that, by sending his original message, the plaintiff “expressly consented” to receiving a confirmatory text message from the Lakers. Indeed, the court noted that when the plaintiff sought to display his message on the scoreboard, “it is difficult to imagine how he could have been certain that the Lakers received his message without a confirmative response.” Accordingly, the court granted the Laker’s motion to dismiss the case. Game over.
This decision is good news for sports teams that use text messages to engage with their fans, and it comes on the heels of other positive developments. For example, when consumers sign up to receive text messages and later request to opt-out, companies typically send a final message to confirm they’ve honored the request. Several recent lawsuits alleged those messages were unlawful. Fortunately, though, the FCC recently determined that those messages do not violate the TCPA.
There are still a number of legal risks associated with text message campaigns. Take a close look at your text message programs — particularly your opt-in procedures — to ensure you comply with legal requirements. Class action lawyers are looking for any excuse to file a suit. But the decision in the Lakers case demonstrates that companies who fight back aggressively against these types of nuisance suits have a good chance of getting the plaintiffs kicked out of the game.
Gonzalo E. Mon is a partner in the Advertising Law practice at Kelley Drye & Warren LLP. You can reach him at gmon@kelleydrye.com. Read more on Kelley Drye’s advertising blog, www.adlawaccess.com.
