February 13, 2019
On February 7, 2019, Plaintiff Michael Seefeldt (“Seefeldt)” commenced a text message lawsuit in the United States District Court for the Eastern District of Missouri. The named defendants are the Outfield Brew House, LLC d/b/a Budweiser Brew House (the “Brew House”) and Entertainment Consulting International, LLC (“ECI”). The Brew House is a sports bar located within the Ballpark Village in St. Louis, which is adjacent to Busch Stadium. ECI is alleged to be the corporate decision maker for the Brew House, with which it shares common ownership, control and/or operation.
The Seefeldt lawsuit is based on alleged violations of the Telephone Consumer Protection Act (“TCPA”), now seeking class action certification. The TCPA prohibits the placing of any telephone call or the sending of any text message, using an automatic telephone dialing system (“ATDS”), to any telephone number assigned to a cellular telephone service, without obtaining the receiving party’s prior express written consent. 47 U.S.C. § 227(b)(1)(A)(iii).
Why did Plaintiff Sue the Brew House and ECI?
Seefeldt contends that he, and others similarly situated, were sent unsolicited text messages promoting the Brew House (as well as Ballpark Village), encouraging them to visit in order to spend money. Specifically, he claims that he and consumers similarly situated were bombarded with text messages promoting special offers, prizes, events and happy hours, and that such messages contained the branding of both the Brew House and ECI. Further, Seefeldt contends that he did not provide prior express written consent to be contacted by the Brew House or ECI. He seeks monetary recovery under the TCPA for text messages sent to him and the putative class during the period of January 24, 2015 to January 24, 2019. Interestingly, Seefeldt does not identify how many text messages he allegedly received, rather, he simply alleges that he received them on “multiple occasions” within the last four years. He contends that the Brew House and ECI either directly sent the subject text messages or used a third-party telemarketer to do so.
Avoiding a Text Message Lawsuit – Obtaining Proper TCPA Consent is Crucial
The Seefeldt lawsuit is one of many text message lawsuits that underscore the importance of obtaining prior TCPA-complaint consent. Regardless of whether the Brew House or ECI sent the allegedly unsolicited text messages (or a third-party telemarketer did so on their behalf), liability under these circumstances is wholly avoidable. Valid TCPA consent is an absolute defense to most TCPA claims. Fundamentally, obtaining prior express written consent that complies with the TCPA (and the regulations promulgated thereunder) should be of paramount importance not just to the telemarketer who places the telephone calls (or sends the text messages), but also to the business on behalf of whom any such calls or texts are delivered.
In order to obtain express written consent from a consumer, businesses must include a clear and conspicuous disclosure of the fact that the consumer is authorizing a designated seller (or some person or entity on the seller’s behalf) to contact her/him through automated means. In the consent language, the seller, that is, the party on whose behalf the call or message is initiated, should be expressly identified.
As we have previously blogged, compliance with the E-SIGN Act satisfies the signature requirement for consent, meaning that electronic or digital forms of signature are acceptable (i.e., agreements obtained via email, website form, text message, telephone key press or voice recording). As TCPA regulations and their interpretation are in a state of flux, it is critically important to retain experienced counsel to review telemarketing practices and procedures.
If you are interested in learning more about this topic or are a party to a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
Attorney Advertising
Related Blog Posts:
Marketer in Hot Water for Inconspicuous TCPA Consent Language
