“The [Telephone Consumer Protection Act (TCPA)] was designed to protect consumers from excessive, unwanted nuisance calls, exactly like the text messages alleged in this complaint.” So says the complaint for this class action, which claims that DSW Shoe Warehouse, Inc. sent unwanted telemarketing messages to consumers without first getting their permission.
The class for this action is all persons in the US to whose cell phone DSW, or someone acting on its behalf, sent a text message, advertising DSW’s products or services, between August 25, 2015 and August 25, 2019, without the persons’ prior express written consent.
The TCPA forbids advertisers from placing calls to consumer cell phones using automated dialing systems or artificial or prerecorded voices unless they have the consumers’ prior express written consent. The term “calls” includes regular voice calls, voicemails, and text messages.
Here’s a sad thing: The complaint says, “Since 2015, the [Federal Communications Commission] is reported to have ordered TCPA violators to pay a total of $208.4 million. As of March 2019, it has collected a mere $6,790.” (Perhaps individual class actions are the best way to penalize companies who insist on breaking the law.)
In July 2019, DSW sent three text messages to plaintiff Lindsay Rucker’s cell phone.
The first began, “20% off + FREE gift! In stores & online thru 7/8[.]” The second began, “DSW: Download the app for easier everything (& get 30 pts)[.]” The third offered, “Get 20% off + a FREE beach blanket! Shop now[.]”
In August 2019, DSW sent two text messages to plaintiff Sophia Wingate’s cell phone.
The first began, “DSW: FREE Backpack w/$49 purchase & Art Kit w/$29 kids’ purchase[.]” The second, sent three days later, began, “DSW: $10 off shoes for you + $10 off shoes for kids thru 9/8[.]”
The complaint claims that all of these messages “contained generic marketing solicitations” which, with a lack of personal information, are generally considered a sign that the messages were part of a mass-mailing with automatic dialing equipment. It claims that the messages were therefore sent to many other consumers as well.
Both plaintiffs deny having provided any kind of prior express written consent to receive such messages.
The complaint alleges willful and knowing violation of the TCPA. It asks for all damages available under the law, including $500 per violation to start with, and up to $1, 500 per violation if the company willfully violated the law, and also all attorneys’ fees and expenses for this action.