Are you concerned about the possibility of being sued for sending consumers text messages that violate the Telephone Consumer Protection Act (TCPA)? If so, or you’re just interested in understanding the ever-changing laws that affect text message marketing, you’re going to want to understand Monday’s U.S. Supreme Court’s decision in the case of Spokeo, Inc. v. Robins.
First off, why was Thomas Robins suing Spokeo, a people search engine, which allows users to search for a specific person with their database, and find information on that person such as their phone, email, address, etc.? Well, it so goes that when you searched for Thomas Robins on Spokeo, he showed up as married, with children, affluent, in his 50s, and holding a graduate degree. The problem… According to Thomas Robins, none of that information was accurate. Whoops!
Who cares though if your personal information in a free online directory is inaccurate? Well according to Thomas Robins, the inaccurate information damaged his job-seeking efforts. So in true American fashion, he brought a class-action lawsuit against Spokeo for violating the Fair Credit Reporting Act, which calls for damages of up to $1,000 for reporting inaccurate information about a person’s creditworthiness.
In simplified terms, Spokeo argued to the court that just because there was a technical violation of a federal consumer protection statute (Fair Credit Reporting Act), the plaintiff couldn’t just collect his $1,000 worth of damages. Instead, Spokeo believed that the plaintiff should first have to prove to the court, as to how the federal violation actually created injury, then, and only then, would that give the plaintiff standing to sue in federal court
This argument made it all the way to the U.S. Supreme Court, and on Monday the justices decided in a 6-2 ruling, to set aside a previous ruling by the 9th Circuit Court of Appeals, allowing Mr. Robins to sue in federal court as a plaintiff in a class-action lawsuit. It also instructed judges to take a harder look at whether plaintiffs actually could show injury due to a violation of federal law, before allowing them to sue in federal court.
Ok… Cool beans, but what the heck does this ruling have to do with text message marketing? Glad you asked! If you’re not aware, the Telephone Consumer Protection Act (TCPA), like the Fair Credit Reporting Act, is a federal law. Monday’s ruling, essentially mandated that all judges require plaintiffs to prove that a text message which they believe to have violated the Telephone Consumer Protection Act, actually caused injury to the plaintiff, before allowing them to sue in federal court.
To get a better understanding of what Monday’s U.S. Supreme Court’s decision will have on existing and future TCPA text messaging lawsuits, we sat down with Mike Hazzard, a partner at Jones Day in Washington, D.C., to ask him some questions. Mike Hazzard has successfully defended a large number of TCPA cases and is our go-to guy for TCPA issues here at Tatango.
How does this court’s decision affect existing TCPA SMS litigation?
I would recommend that TCPA defendants take rapid action if they want to rely on Spokeo. As a practical matter, arguments that a plaintiff lacks “standing” to bring a lawsuit need to be raised as early as possible in litigation. If this defense is not raised quickly, it can be waived. Relying on the new Spokeo decision, defendants may have a good chance to bring a standing argument. Again, defendants should act quickly if they want to try to rely on Spokeo.
How does this court’s decision affect future TCPA SMS litigation?
The “price of poker” certainly has gone up. Plaintiff’s lawyers are going to have to do a much better job of pleading their cases to show “concrete injury.” SMS is often a flat-rated service, so no additional charges are incurred. Also, lots of folks send hundreds if not thousands of text messages a month. In such a circumstance, it gets pretty hard to argue that a couple of stray messages “injured” a person in any discernable way.
Taking into account the court’s decision, where do you think future courts will draw the line between SMS TCPA violations being just annoying to consumers, compared to actually causing harm to the consumer?
In the early days of TCPA suits, plaintiffs routinely engaged in spaghetti litigation — throw it on the wall and see what sticks. Those days are long gone because of a number of decisions, including Spokeo. The long and the short of it is that if someone is initiating repetitive, harassing SMS messages (or robocalls), the very well may have substantial TCPA trouble. If a business is sending consumers information they have requested, it’s going to be very, very hard for litigants to claim they have been injured.
What should a business or organization do if they’re being threatened with a lawsuit for violating the TCPA because of text messages they’ve sent to consumers?
If you get sued, call a lawyer who has solid TCPA defense experience, or ask around for a referral. If you are running a business that is working to comply with the law, chances are you have a number of very good defenses to ward of a TCPA lawsuit. A good defense attorney may even be able to get the plaintiff’s lawyer to dismiss the case before you even need to respond. Skill matters. The only thing more expensive than hiring an expert is hiring an amateur.
Have additional TCPA questions? Feel free to contact Mike Hazzard directly at mhazzard@jonesday.com
