I recently came across a class action lawsuit Badie Jaber V. NASCAR HOLDINGS, INC. filed on August 8, 2011, against NASCAR for sending unsolicited text messages to the plaintiff Badie Jaber. The plaintiff in the case argues that she never asked to receive text messages from NASCAR and that the company sent her the following unsolicited message earlier this year:
FREE NASCAR Sprint Cup Mobile lets you watch the action from Daytona live on your phone. Download now. Reply END to stop.
The plaintiff is seeking up to $1,500 in damages for each violation (text message) of the Telephone Consumer Protection Act. Attorneys for the plaintiff think damages will be over $5 million with the amount of Sprint customers that received this text message.
Three things in the class action lawsuit that I found interesting being in the SMS marketing space.
- It was interesting to me why Sprint wasn’t named as a defendant in the class action suit along with NASCAR. The text message in question was coming from the Sprint short code (2222) and the promotion was obviously a joint promotion, so I dug a little deeper. I’m no attorney, but in the Sprint Terms and Conditions, it states that both parties waive the right to join or bring any class action against each other. This may be the reason why Sprint wasn’t named as a defendant. Does this mean that Sprint has a free pass to spam its customers?
- This class action lawsuit is definitely a first of its kind as far as I can tell. Until now there has never been a suit brought against a company for text messages that were sent on behalf of the carrier, to the carrier’s own customers. This lawsuit will definitely be an interesting one to watch.
- It’s always frustrating to see that in these spam SMS lawsuits that the recipient is suing for receiving two SMS messages. Wait, what… I thought you said she only received one? Yes, but then she replied END to the message and received an SMS message confirming that she was removed from the program. This seems a little frivolous as it complies with the MMA U.S. Consumer Best Practices, but hey, when you’re talking about receiving $1,500 per text message, I would do the same as the plaintiff has done here.
Don’t want your business to be involved in a spam SMS lawsuit. All you have to remember is to get your customers’ permission to send them SMS messages, it’s pretty simple.