Unrequested and Unwanted: TCPA Protects Consumers from Companies that Text You

A California federal judge on Monday denied Bebe Stores Inc.’s attempt to escape a proposed class action alleging violations of the Telephone Consumer Protection Act (TCPA), saying that the plaintiff didn’t need to have been charged for allegedly unsolicited texts to state a claim. The case is Meyer v. Bebe Stores Inc, case number 14-cv-00267-YGR in the U.S. District Court for the Northern District of California.
U.S. District Judge Yvonne Gonzalez-Rogers rejected Bebe’s argument that plaintiff Melita Meyer failed to state a TCPA claim because she consented to receive a text message from Bebe and didn’t sufficiently allege that Bebe used an automatic dialing system to text her. The judge said that Bebe needed Meyer’s express written consent to text her an advertising or marketing message, rejecting Bebe’s contention that the text was simply an informational or administrative message to confirm that Meyer opted to receive texts.
“Unlike the cases cited — where plaintiffs had previously consented to receive the communications and the confirmatory opt-out message itself contained no advertisement or telemarketing content — the pleadings here establish a plausible lack of any prior express written consent by plaintiff to receive such messages,” the judge said. “Moreover, the court finds that the message at issue plausibly constitutes an ‘advertisement’ and that it was plausibly sent for ‘telemarketing’ purposes as the regulation defines those terms.”
The judge said that Meyer had sufficiently alleged that Bebe had used a automatic dialing system, since she said in her complaint that the texts had been sent “en mass” and included the body of the text, which the judge said appears to be a form message.