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 keeps growing, and many companies have paid millions of dollars to settle these suits. These settlement amounts have attracted the attention of class action lawyers, who often see these suits as a path to easy money. The Buffalo Bill’s recent decision to enter into a settlement to end one of these suits shows just how dangerous this area can be.
First, some quick background. The Telephone Consumer Protection Act (TCPA) generally makes it unlawful to send marketing text messages to a person without that person’s express written consent. The law also provides for penalties of up to $1,500 per violation. Because each individual message sent without consent can be deemed a separate violation, the dollars can add up quickly, especially when a team has a large number of fans enrolled in a program.
In 2012, the plaintiff in the Bills case signed up to receive text messages from the team. The terms of the text message program disclosed that “you will be opted in to receive 3-5 messages per week for a period of 12 months.” After the plaintiff opted-in, he received a confirmation message that also referred to “up to 5msgs/week.” The plaintiff claimed that shortly after signing up, he received six texts in one week and seven texts in another week.
In the lawsuit, the plaintiff argued that the one additional message received during the first week and the two additional messages received during the second week were sent without consent and, thus, in violation of the TCPA. During discovery, the team produced a spreadsheet indicating that at least 20,000 were sent messages in excess of five per week. At $1,500 per violation, that could have meant a lot of damages, if the Bills lost.
After more than a year of litigation, the Bills agreed to a $3 million settlement. As part of the deal, the team will provide class members who submit valid claims up to $2.5 million worth of debit cards good at the team’s stadium or online store. Separately, the Bills will pay over $500,000 in attorneys’ fees. That makes for a very expensive text message campaign.
If your organization is contemplating a text message promotion, make sure that you have a lawyer familiar with this area on your team. Some of the requirements under the TCPA can be tricky, and the costs of getting things wrong can be devastating. This case shows that even minor mistakes can cost millions of dollars.
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
