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Alleged Text Spammers Score Win in TCPA Class Action Lawsuit
By Jessica Tyner
The Telephone Consumer Protection Act (TCPA) is designed to protect consumers and residents from getting spam texts and calls, marketing outreach they never signed up for, and to deflect collection outreach that doubles as harassment. There are many TCPA class action lawsuits targeting big names like Google, Wells Fargo and Papa Johns. However, not all TCPA lawsuits are viable because things can get tricky — as technology is constantly evolving, the TCPA regulations have to scurry to keep up.
On August 5, 2013, a Florida court dismissed one TCPA class action lawsuit against a marketing company due to a jurisdictional conflict. The target was General Electric Capital Corporation (GE), which was facing a California lawsuit. Other TCPA lawsuits dismissed were against Zoom Tan and Club Texting, both sued in Florida. Plaintiff Shaina Rutherford claimed she’s received unsolicited texts from the two latter companies, but the companies stood their ground.
According to the TCPA complaint, Club Texting is based out of New York and was working for Zoom Tan to promote numerous services. The promotion was done via “unauthorized transmission of advertisements” by way of texts to people around the country. Rutherford says she never signed up for any text messages, and she claims the companies should be sued in Florida because they “engaged in business” there by texting her.
Rutherford alleges in the class action lawsuit that the spam texts were sent en masse, which led to revenue gain throughout Florida. However, Club Texting argued that it didn’t consciously target Florida, and it didn’t have any control over the timing of the texts or to whom they were sent to.
While Rutherford says thousands of Floridians received unsolicited text messages from Club Texting on behalf of Zoom Tan, the court sided with Club Texting and agreed that Florida wasn’t intentionally targeted. This TCPA lawsuit was dismissed—but Zoom Tan is still facing a TCPA claim.
Some may be wondering just why certain TCPA lawsuits “take” while others are dismissed. According to Florida courts, it was the fact that text messages were sent to numbers “throughout the country” that led to the jurisdictional dismissal. Rutherford’s TCPA claim says that the company engaged in “substantial and non-isolated activity by soliciting and engaging in business in Florida,” which led to a marketing scheme throughout the state.
Club Texting’s sworn affidavit states that it didn’t mean to target the state. While the court agreed, it’s important to note that the court hasn’t reached a decision about “failure to state a claim and primary jurisdiction arguments.”
According to FCC regulations, a seller depending on a third-party telemarketer (in this case Club Texting) may still be vicariously liable for TCPA violations. Just because a call or text was made to benefit the seller (Zoom Tan) doesn’t necessarily mean there’s liability on the seller’s part—there has to be more to it than that. If a seller doesn’t personally make calls or send texts, they will “only” be vicariously liable for the breaking of TCPA rules.
Rutherford’s Next Steps
There’s no word on what Rutherford’s next steps will be, although she does have some options. Zoom Tan is still facing a class action lawsuit for violating the TCPA, and her efforts may be focused there. Some critics of the TCPA process may say it’s unfair that just because a company “didn’t mean to” target a state means that they don’t have to follow the law. It may seem like there are numerous TCPA lawsuits popping up around the country, but the fact remains that many people get a wayward text or phone call and don’t do anything about it—or even realize it’s illegal.
The reason TCPA laws exist are largely because a person may be paying to receive telemarketing or harassing calls and texts. Not everyone has bottomless minutes or unlimited text messages. However, whether a person pays per text or minute (or not) doesn’t really matter. If “robocalling” is involved to get ahold of people en masse — whether by phone, text or fax — TCPA regulations may apply.
It’s also possible that another Club Texting victim might come forward. Rutherford is sure thousands of other people received unsolicited text messages just like her.
Do You Suspect a TCPA Violation?
Have you been contacted by an unauthorized company and think TCPA laws might have been broken? If so, you might qualify for a TCPA legal claim. You can discover more at the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation right now. Submit your story and an attorney will contact you if you have a case for a free TCPA claim review.
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