By Jason Re, Esq.
The Chicago Cubs are no stranger to the curveball, but a lawsuit surely was not what was anticipated as the Major League Baseball season hums along into the Summer. In May of this year, Chicago resident Colin Lateano filed a civil suit against the storied franchise in the United States District Court for the Northern District of Illinois, where both Lateano and the Cubs call home.
The complaint alleges recurring violations of the Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227(c)), which instructs the Federal Communications Commission to implement regulations concerning the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object. To that end, the FCC implemented the following rule:
“Persons or entities making calls for telemarketing purposes (or on whole behalf such calls are made) must honor a residential subscriber’s do-not-call request within a reasonable time from the date such request is made. This period may not exceed thirty days from the date of such request.” (47 C.F.R. § 64.1200(d)(3)).
Specifically, the factual allegations that Lateano claims are as follows: Leading up to July 21, 2022, Laetano received several text messages from the Chicago Cubs promoting the sale of baseball tickets and attendance of games thereof. On July 21, 2022, Laetano responded to one such message with a message of his own saying, “Stop.” Despite that instruction, the Chicago Cubs continued to send numerous text messages to Laetano long after the thirty-day grace period had passed, including but not limited to messages on February 2, 2023; February 24, 2023; and March 24, 2023. These messages advertised tickets on sale for the Chicago Cubs games, and included an instruction that said, “Text STOP to cancel.” Thus, as the texts persisted after Laetano requested they stop, he claims the Chicago Cubs harmed him by intruding upon his seclusion, invading privacy, wasting his time, and interfering with the legitimate use of his phone.
The cause of action comes in one count: Telemarketing calls made after a do-not-call request in violation of the Telephone Consumer Protection Act at 47 U.S.C. § 227(c), and in violation of the FCC’s regulations at 47 C.F.R. § 64.1200(d)(3) by allegedly failing to institute procedures necessary to honor do-not-call requests and by allegedly placing telemarketing calls to the plaintiff Lateano and members of the class’s phone numbers after explicit receipt of a do-not-call request.
The complaint is styled as a class-action complaint on behalf of himself and other similarly situated individuals, stating that Lateano’s situation has common questions of law and fact to the purported class, Lateano’s situation is typical of the claims of the purported class, Lateano would be an adequate representative of the class, and that a class action suit is in the best interest of efficiency and expediency. The complaint goes on to state that Lateano and the members of the Class are entitled to an award of $500 in statutory damages for each and every violation of the above statute, or up to $1,500 in statutory damages for each willfully or knowingly made violation of the aforementioned. Receiving what could be thousands of dollars simply for receiving text messages surely would be considered a homerun for the Plaintiff.
Naturally, one important question is the certification of the class. In the complaint, Laetano proposes the following Class definition: “All persons in the United States (1) subscribing to a residential telephone number, (2) to which [the Chicago Cubs] sent at least two text messages to within a 12-month period, (3) promoting its goods for sale, (4) at least 30 days after receipt of a “stop” reply, (5) within four years of the date of the Complaint.” Laetano suggests that the Class numbers at least in the thousands, and individual joinder of these persons is impracticable, another key element of class certification. As noted above, the Complaint argues that there is a common question of law or fact to the Class, Laetano’s claim is typical of the Class, and the interests of the Class will be adequately represented. Of course, the court must certify the class before the complaint can proceed as a class action.
Another crucial question that would be explored is whether the litany of communications received by Lateano, and those similarly situated, would qualify as “telemarketing” for the purposes of the Telephone Consumer Protection Act. The term “telemarketing” is defined in the statute as meaning “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person” (47 C.F.R. § 64.1200(f)(13)). If it is decided that the alleged activities of the Chicago Cubs did not fall under the definition of “telemarketing,” it is possible that the claim would not fall under the TCPA, and thus there would be no cause of action. Similarly, if the Plaintiff’s alleged “stop” response was not as specifically asked for in the initial marketing messages, (for example, if it was misspelled, or capitalization and punctuation were not exact), then it is possible there would be no cause of action either.
A third key question to be considered is whether the alleged violative actions of the defendant Chicago Cubs were knowing and willful. This threshold, as noted earlier, can have an impact on the amount of statutory damages awarded if it was found that the defendant was in violation of the statute. Here, if the actions of the Chicago Cubs were found to be knowingly and willfully in violation of the statute, the statutory damages could potentially be tripled. As of now, it is difficult to tell, but the alleged violative text messages may just be a result of a malfunctioning messaging system, rather than a malicious design to ignore “stop” prompts.
As of the time of writing, the Chicago Cubs have yet to file in reply to the complaint, but there is little doubt they’ll step into the batter’s box soon. The Telephone Consumer Protection Act has various provisions restricting telephone solicitations, automated solicitation equipment, automatic dialing systems, artificial text messages, and more; not to mention that enforcement has been strong in the past decade. Since 2015, the Federal Communications Commission has ordered violators of the TCPA to pay $208.4 million all together. The sum includes forfeiture orders in cases involving robocalling, Do Not Call Registry and telephone solicitation violations. One thing is clear at this juncture – corporations, no matter how large or historic, would be well advised to keep their eye on the ball and take care in their electronic marketing practices to ensure there are no inadvertent violations of the TCPA that could cost them potentially millions of dollars.
