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'Text Spam' Suit Shows Businesses Need to Know TCPA Thoroughly

April 19, 2016
By Christopher Mohr - Contributing Writer


Any business that relies on marketing texts may want to re-examine that strategy after a federal class action complaint filed last week in Connecticut. In the complaint, Edible Arrangements (EA) is alleged to have sent text messages in violation of the Telephone Consumer Protection Act, exposing it to millions of dollars in damages.


Edible Arrangements, LLC is a Wallingford, Connecticut-based franchisor of stores that create fresh fruit arrangements similar to floral bouquets. According to the company’s website, it has more than 1,200 locations worldwide. Customers can order by phone, or through the company website. Deliveries can be made locally or through UPS.

A document filed on April 5 with the U.S. District Court in the District of Connecticut alleges that within the past four years, EA sent marketing text messages to Florida resident Christopher DiStasio. It further alleges that these messages contained marketing, were impersonal in nature, originated from an automated dialer, and were not sent for emergency purposes.

Additional allegations state that DiStasio’s cell service charges for incoming messages and that he never has been an EA customer, nor has he opted in to receive automated texts from EA. Because of these allegations, the complaint argues that EA is in violation of the TCPA and seeks statutory damages of $500 and treble damages of $1,500 for each call in violation of the TCPA, along with attorney’s fees and court costs. Because these texts were sent to thousands of people, the complaint argues that it is more suited for class action, rather than thousands of individual actions.

The fact that several well-known companies have been sued or face lawsuits for text spamming seems to suggest that many businesses are not aware of the kinds of messages subject to the TCPA. Uber, Burger King, CVS, Jiffy Lube, Papa John’s, and Papa Murphy’s recently have been defendants in text spam lawsuits.

It’s puzzling why so many major franchisors like this were seemingly caught off-guard. If ignorance of the law is no excuse, then ignorance of the TCPA moving forward is beyond inexcusable.

As New York law firm Klein Moynihan Turco points out, the U.S. Supreme Court has made it harder for TCPA defendants to get cases dismissed. It is highly recommended that businesses review their telemarketing practices with legal counsel that has expertise in such matters. To do otherwise would place a business at the mercy of a court system that has so far demonstrated itself to be unmerciful.

 



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