On July 22, 2019, Amanda Defranks ("Plaintiff") filed a putative Telephone Consumer Protection Act ("TCPA") class action lawsuit against clothing retailer, nastygal.com USA Inc. ("nastygal.com"). The TCPA text message lawsuit was filed in the United States District Court for the Southern District of Florida and is captioned Amanda Defranks v. nastygal.com USA Inc., Case No. 1:19-cv-23028-DPG.
What led to this TCPA text message lawsuit?
Plaintiff's TCPA Text Message Lawsuit Claims
In her TCPA lawsuit, Plaintiff alleged that nastygal.com purportedly sent unsolicited text messages to her cellular telephone using an automatic telephone dialing system ("ATDS") without obtaining her prior express written consent as required by TCPA regulations. In particular, Plaintiff alleged in this TCPA text message lawsuit that nastygal.com sent her a text message on May 24, 2019 and May 27, 2019. The text messages were sent from the "short code" 283-24 and promoted nastygal.com's business by offering "60% off Everything." Plaintiff alleged that the "short code" used by nastygal.com allowed it to send text messages en masse while "deceiving recipients into believing that the message was personalized and sent from a telephone number operated by an individual."
Plaintiff claims that the subject text messages were sent using an ATDS because the system used by nastygal.com allegedly had the capacity to "store telephone numbers using a random or sequential generator, and to dial such numbers from a list without human intervention." As we have previously blogged, this definition is currently being revisited by the Federal Communications Commission following the D.C. Circuit's ruling in ACA International v. FCC. In addition, Plaintiff also based her ATDS claims on the "impersonal and generic nature" of the text messages (i.e., that the text messages do not say something more personalized, such as "Hi Amanda").
Plaintiff seeks statutory damages on behalf of herself and the putative class (i.e., all others similarly situated) in an amount exceeding $5 million, as well as a mandatory injunction that would prevent nastygal.com from sending future text messages in violation of the TCPA.
Avoiding TCPA Lawsuits
Text message marketing campaigns can increase brand awareness and sales through relatively inexpensive targeted advertising. Conversely, text message marketing campaigns that do not comply with applicable telemarketing laws, including the TCPA, have the potential to cripple a business. As such, marketers are well-advised to retain seasoned counsel to help assist them in navigating the nuances of state and federal telemarketing regulations.
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