Last month, a putative class action Complaint was filed against Dave & Buster's ("Defendant") for allegedly failing to observe proper telemarketing hours. In Laureta v. Dave & Buster's Inc., Plaintiff claims that he received three text messages between 3:00 and 6:00 a.m. If Plaintiff's allegations are proven true, Defendant may have violated the Telephone Consumer Protection Act ("TCPA"), exposing it to a potentially significant monetary judgment.
As our readers are aware, the TCPA is a federal statute that restricts certain types of telemarketing communications. Every day, numerous TCPA complaints alleging violation of the TCPA and its state analogs are filed across the country. In the wake of Facebook v. Duguid, TCPA plaintiffs have increasingly turned to other portions of the statute when bringing their litigation claims. Failure to observe certain telemarketing hours is not as commonly alleged, but Laureta is a stark reminder that businesses must continually ensure compliance with every portion of the TCPA and its implementing regulations.
The Facts Alleged in Plaintiff's Telemarketing Hours Lawsuit
Defendant operates a chain of family-friendly sports bars offering an extensive food menu and arcade games. In his lawsuit, Plaintiff states that he received text message marketing from Defendant at 3:10 a.m., 3:46 a.m., and 5:52 a.m. on his cellular phone. Plaintiff claims that he never authorized Defendant to send him telephone solicitations before 8 a.m. or after 9 p.m. Plaintiff further alleges that his cellular phone is utilized solely for personal purposes and that his telephone number should, therefore, be treated as a residential phone line under the law.
Applying the Relevant Statutory Provisions to Plaintiff's Claims
The TCPA's applicable implementing regulations, found at 47 C.F.R. § 64.1200(c)(1), provide, in pertinent part: "[n]o person or entity shall initiate any telephone solicitation" to "[a]ny residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (local time at the called party's location)." 47 C.F.R. § 64.1200(c) further states that these restrictions are "applicable to any person or entity making telephone solicitations or telemarketing calls to wireless telephone numbers."
The Laureta Complaint details that any person who has received more than one telephone solicitation within a 12-month period from, or on behalf of, the same entity outside the statute's proscribed hours has a private right of action. Because Defendant appears to have sent Plaintiff three marketing text messages before 8 a.m. local time, Plaintiff may have a valid TCPA claim. Note that Defendant may be liable for $500, or $1500 if its conduct is proven willful, per text message sent in violation of the TCPA, on a class wide basis.
Why is Laureta Important to Your Business?
Telemarketing hours violations may not be as familiar to some as allegations of prerecorded voice call or National Do-Not-Call Registry violations, but make no mistake, these claims may result in significant cost. It is important to point out that we have seen these "Quiet Hours" claims filed at an unprecedented rate over the past couple of months. Businesses should also be aware of the fact that many state-specific "Mini-TCPA's" contain their own acceptable hours for telemarketing. With certain exceptions, best practices dictate that telemarketing communications should only be delivered between 9 a.m. and 8 p.m., Monday to Friday (excluding certain holidays), recipient local time.
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