Lawsuit Claims Opt-Out Acknowledgments Are Illegal Texts

On August 10, 2011, Badie Jaber, a California resident, filed a class action lawsuit against NASCAR alleging she received an unsolicited text message from the auto racing federation. The text message touted a cell phone application that allows consumers to watch NASCAR races live on their cell phones.

Sending unsolicited text messages violates the Telephone Consumer Protection Act (TCPA) because recent case law interpreted a text message to be the equivalent of an auto-dialed telephone call under the federal statute.  Although there are exceptions the general rule is that auto-dialed calls, facsimiles and text messages are all illegal under the TCPA unless they are sent with the express consent of the recipient.

According to Ms. Bader's complaint, she "did not provide Defendant or its agents prior express consent to receive unsolicited text messages." NASCAR has not yet filed its answer to the complaint, so it remains to be seen whether it will argue that Ms. Bader did agree to receive the text. It is possible that Ms. Bader gave her consent without realizing she was doing so, but it is also possible there was no consent, or that the consent was legally invalid due to inconspicuous notices.

Ms. Bader goes on to allege that she replied "End" to the text to opt out of receiving any future NASCAR messages and that NASCAR responded to her opt-out request as follows: "Thanks. You have been removed from our Device Education SMS program." According to Ms. Bader and her attorneys, this acknowledgment was a second violation of the TCPA, because it too was an unsolicited text message. The TCPA allows, and Ms. Bader has requested on behalf of herself and every class member, damages of up to $1,500 for each illegal text message.

On August 3, 2011, a federal court in Michigan confirmed a ruling that TCPA claims are inappropriate for class action treatment because of the individual issues inherent in determining each consumer's alleged consent to receive the communication at issue. In other words, some courts won't allow a TCPA case to proceed as a class action because the question of whether someone agreed to receive a text, call or fax requires individual consideration and cannot be adjudicated en masse. However, California is not a jurisdiction that shares this view, so it is entirely possible that Ms. Jaber's lawsuit could eventually be certified as a class action after discovery.

In light of her claim that the opt-out confirmation is itself an illegal text message, companies using text messages to solicit consumers should consider whether it is necessary to acknowledge an opt-out request. Of course, the original text should not be sent unless there is clear authority to do so.

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