How many times have you been distracted by your phone alerting you to an incoming text message. If you are like me, you can’t simply ignore them. It is human nature to open and read them. Unfortunately, what we receive are often “SPAM,” unwanted text messages. Most people ignore them despite their aggravation. A few people fight back.
Today’s post begins with Kristie Farnham. In just over a year, she forced a coffee shop chain to pay millions of dollars for sending unwanted text messages.
Kristie Farnham lives in a small town in northwestern Wisconsin. Just across the border in Minnesota is the headquarters of Caribou Coffee Company. Today Caribou is a growing coffee chain with 13 retail shops in Wisconsin and many more nationwide. Between March and May of last year, Kristie says she received 50 unsolicited text messages from Caribou Coffee.
TCPA Outlaws Unwanted Text Messages
Just like robocalls, unwanted text messages are illegal. The Telephone Consumer Protection Act (TCPA) allows some autodialed text messages but as a general rule, unless the communication is made for an emergency or you opted to receive texts, these messages are illegal.
The TCPA outlaws unsolicited texts that advertise or solicit. It’s that simple.
TCPA Violations – $500 to $1500 Per Text!
In passing the TCPA, Congress made it clear that consumers should be protected from unwanted phone calls and robocalls. Technology has changes and today many of the marketing efforts involve texts. Wherever we go, we are bombarded with advertisements. Congress was wise in trying to insure we get some peace and privacy, especially with our cell phones.
Recently the FCC has expanded the TCPA definition of auto dialed calls to include unwanted text messages sent with auto dialers. Although the FCC’s expanded rule has been challenged, most courts agree that the TCPA protects against both robocalls and robotexts. Unless you opted in, businesses shouldn’t be texting you.
According to Kristie’s complaint,
“each unsolicited SMS text message that Defendant transmitted to Plaintiff’s cellular device invaded Plaintiff’s privacy and intruded upon Plaintiff’s seclusion upon receipt. Each unsolicited SMS text message that Defendant transmitted to Plaintiff’s cellular device distracted and aggravated Plaintiff upon receipt. Upon receiving each of Defendant’s unsolicited SMS text messages, Plaintiff wasted valuable time interacting with her cellular device in order to access the message, and then wasted more valuable time reading the message and ultimately disposing of the message. Each unsolicited SMS text message that Defendant transmitted to Plaintiff’s cellular device wasted available data storage on Plaintiffs cellular device, and thus reduced the overall data storage capacity of Plaintiff’s cellular device. The SMS text messages that Defendant transmitted to Plaintiff’s cellular device diminished the available battery power (and shortened the battery life) of Plaintiff’s cellular device on receipt of these messages, and thus required Plaintiff to expend energy (i.e., electricity) to recoup the battery power lost as a result of receiving these messages.”
Did 50 unwanted text messages really diminish her phone’s storage capacity? Probably very little but they were certainly annoying. And we agree that Caribou had no right to constantly invade her privacy with unwanted sales pitches by text messaging.
Under the TCPA, those messages were worth between $25,000 and $75,000. How? The law says that people who receive unwanted text messages are entitled to receive $500 per call or text. Those damages are tripled if can be proven that the person sending the texts knew they were violating the law. That means 50 calls can mean $25,000 or more in penalties.
Unwanted Text Messages Brought as Class Actions
It is unusual for one person to have received 50 messages. Kristie not only received that many, she could show the dates and times. Most cases involve just a few messages.
Finding a lawyer to take a case with $500 or $1500 in damages is virtually impossible. Particularly if you are taking on a big bank or company.
Luckily, TCPA cases can be handles as a class action. That allows one person to bring the case on behalf of everyone who may have received unwanted text messages from the same business. In this case, the court found that there were thousands of potential victims. Absent Kristie coming forward, however, there may have been no one willing to stand up and take action.
Caribou Coffee Settles for $8.5 Million
Earlier this week, Kristie, the class representative and Caribou Coffee agreed to settle the case for $8.5 million. Under the settlement, everyone who received unwanted text messages would receive approximately $200 per message. For her service as the class representative and for bringing the case, Kristie Farnham is likely to receive a higher amount.
Like all class action unwanted call and text message cases, the court will have to approve the settlement. Once approved, notices and advertisements will be placed so that potential members of the class can join and receive their portion of the settlement. If anyone decides the settlement isn’t fair, they can either opt out and pursue their own case against Caribou Coffee or ask the court to not approve the settlement.
In the unlikely event that more than 500 recipients of Caribou’s unwanted text messages opt out, Caribou can withdraw from the agreement.
The court’s fairness hearing on the settlement is tentatively scheduled for November of 2017 giving the public plenty of time to object or opt out.
Are Class Action Settlements Fair?
We hear this question often. For the most part, they are. Certainly, we would never propose a settlement unless we thought it was the best we could obtain for our clients and the larger class of potential victims.
As noted above, the prospect of thousands of people suing Caribou Coffee for $500 is slim to none. No attorney is going to take on a big company when the “prize” is $500. The only way these cases can be effectively handled is through a group. That almost always means a class action.
Remember that individual victims of these scams can always opt out and pursue their own lawsuit. They can also argue to the court that the settlement is unfair and ask it to be rejected. Last year a federal judge in San Francisco rejected a $100 million settlement for Uber drivers in California. That rejection came after dozens of drivers claimed that their lawyer didn’t listen and sold them out.
FIGHT BACK AGAINST UNWANTED TEXT MESSAGES
If you received unsolicited text messages or continue to receive messages after you text “STOP”, contact us immediately. You may be entitled to significant compensation.
Save the text message thread and make sure you keep a log of every unwanted or unsolicited text message. Each text is a separate violation.
All unwanted text message cases are handled on a contingent fee basis meaning you don’t us a penny unless we collect money for you. For more information, contact attorney Brian Mahany at *protected email* or by phone at (414) 704-6731 (direct).
Need information about unwanted telemarketing calls or robocalls? Junk faxes? Illegal phone recording / monitoring? We have plenty of information on our website!
Remember, “You have to fight hard for privacy or you lose it!” (Eric Schmidt, Chairman of Google)
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