Victoria’s Secret faces a class action lawsuit over allegations that the retailer violated the Telephone Consumer Protection Act by sending a customer 97 text messages in a single day.
Lead plaintiff Michael Hannegan’s complaint states that on May 28, 2015 he received a text message from the retailer that read: "One more step! Reply YAY to opt in & get members-only offers and fun.”
Hannegan alleges he was induced to reply “YAY” and that under the terms of agreement for the promotional campaign, Victoria’s Secret promised it would send no more than six text messages per month. However, on November 4, Victoria’s Secret allegedly sent the plaintiff 97 text messages. Plaintiff seeks to certify a class of all persons in the United States who, within the last four years, "were sent more than six (6) text messages in a single month by or on behalf of [Victoria’s Secret] to their cellular telephone[s], wherein said text messages were sent using an automated telephone dialing system.”
Hannegan’s class-action lawsuit claims that the text messages were not only invasive but also violated the TCPA."Because the initial opt-in message that defendant sent to plaintiff stated that he would receive no more than six messages per month, any additional messages beyond the first six messages he received in any given month were unauthorized and sent without plaintiff’s consent in violation [of the TCPA]," the Victoria’s Secret text spam class action states. The suit was originally filed in the Central District of California, but has since been re-assigned to the Southern District of California. Victoria’s Secret has yet to be served in the action.
While the case is likely the result of a technical glitch, it highlights both the both the rising number of TCPA class-action lawsuits related to unwanted consumer contact and the need for strong technology to help companies avoid such suits. TCPA class-action lawsuits also generally have proven to be easy wins for plaintiffs.
The Federal Communications Commission clarified TCPA language last July concerning auto-dialing cell phones, consent to call and calling wrong numbers. That ruling made clear that if a caller uses an autodialer or prerecorded message to make a non-emergency contact to a wireless phone, the firm must have obtained the consumer’s prior express consent.
Consent must be in writing if the message is a telemarketing call but can be either oral or written if the call is informational. The rules carve out an exemption for the first wrong-number call but not for any subsequent calls to that number.