Yet another business believes it’s a good idea to promote its products and services by allegedly forbidden means. The complaint for this class action alleges that Mcghee Mcauliffe Investments, LLC promoted its Alibi Nail + Beauty Bar services through text messages that were unlawful under the Telephone Consumer Protection Act (TCPA).
The class for this action is all persons in the US to whose cell phones Alibi Nail + Beauty Bar, or someone operating on its behalf, sent a text message advertising its services, between April 18, 2015 and April 18, 2019, when the persons had not given their prior express written consent.
Congress passed the TCPA to try to protect consumers from the burden of telemarketing, which was growing larger every year with the availability of automatic dialing and prerecorded messaging systems.
The TCPA forbid a number of practices, including the sending of telemarketing calls or messages to consumer cell phones, since cell phone owners typically pay for incoming as well as outgoing calls. Telemarketing thus becomes an expense for consumers as well as a nuisance.
Under the TCPA, telemarketers may not place non-emergency calls to consumer cell phones using an automatic dialing system or an artificial or prerecorded voice, unless they have first obtained the consumers’ prior express written consent to receive such calls. The term “calls” encompasses regular voice calls, voice messages, and text messages.
Still, on or about January 31, 2019, Alibi Nail + Beauty Bar sent a text message to plaintiff Brenda Schamy’s cell phone.
The message said, “Brenda, Now through Feb 28thALIBI Beauty Bar have [sic] 30% off all acrylics and refills. Call 302-514-0305…” The complaint claims this is telemarketing because it promotes Alibi’s goods or services, that is, acrylics and refills, and the offer of a discount was meant to attract customers.
The complaint alleges that the impersonal and generic nature of the message shows that the company used an automatic dialing system and sent the message to many other parties. The message originated from a number that is believed to be owned by the company.
Schamy never gave the company her prior express written consent to receive such messages on her cell phone, the complaint says.
It alleges willful and knowing violations of the TCPA and asks for actual and statutory damages, as well as “[s]uch further and other relief the Court deems reasonable and just.”