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Designer Brands Robo-Texting TCPA Class Action

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Designer Brands, Inc. sells designer and name brand shoes and accessories. However, the complaint for this class action alleges that they also do marketing by unlawful means—that is, by making calls to consumers that violate the Telephone Consumer Protection Act (TCPA).

The TCPA was intended to limit telemarketing and give consumers some say in who is allowed to contact them with advertising messages. Of particular concern were calls to consumer cell phones, because cell phone owners pay for incoming as well as outgoing calls. 

It is currently unlawful for an advertiser to place a call to a consumer cell phone using an automatic dialing system or an artificial or prerecorded voice unless they have the consumer’s prior express written consent. The law even specifies how the consent must be obtained. 

 “Calls” in this context refers to regular voice calls, voicemails, or text messages, since all of them cost the recipient money and all are equally annoyances.

Nevertheless, sometime around June 23, 2019, Designer Brands begin sending telemarketing text messages to the cell phone of plaintiff Simmone Dargoltz. 

The complaint reproduces nine of these messages. Here are how some of them began:

  • June 23: “DSW: Thanks for getting new stuff! You just got 91 points!...”
  • July 3: “DSW: 20% off + FREE gift! In stores and online through 7/8…”
  • July 8: “DSW: Your $5 Reward won’t last forever…”
  • July 27: “DSW: Don’t forget! You get $15 off thru 8/25. Shop now…”
  • July 29: “DSW: Get $10 off + an EXTRA $5 off when you shop in-app…”

The complaint alleges these texts constitute telemarketing, since they’re clearly encouraging purchases of the company’s merchandise. It also claims that the impersonal and generic nature of the text messages are a sign they were sent through an automatic dialing system. 

Dargoltz claims she never gave her express written consent to be contacted using an automatic dialing system. 

The class for this action is

  • All persons
  • Who were sent a text message by or on behalf of Designer Brands
  • Using an automatic dialing system,
  • From September 12, 2015 on,
  • For the purpose of promoting Designer Brands’ goods and services,
  • For whom Designer Brands claims (a) that it did not obtain prior express written consent or (b) that it obtained prior express written consent in the same manner as it claims it obtained it from the plaintiff in this case.
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