Unwanted Text Messages Results in $3.5 Million Settlement

. By Gordon Gibb

Alex Soular kept getting unwanted spam in the form of text messages from a well-known convenience retailer. A subsequent class action TCPA lawsuit was settled for more than $3 Million.

It was just over a year ago that convenience retail giant SuperAmerica settled a TCPA lawsuit brought by a plaintiff representing a proposed class of similarly-affected litigants 175,000 strong. At issue were unwanted solicitations in the form of text messages that plaintiffs claimed were illegal under the Telephone Consumer Protection Act. The lawsuit was brought in the State of Minnesota.

The defendant disagreed with those claims and held that the lawsuit was without merit. But SuperAmerica settled anyway.

TCPA is a level of protection for consumers who otherwise are inundated with calls or other forms of unwanted contact from bill collectors, debt collection agencies, and the like. Under TCPA and similar federal statutes, debt collectors are prevented from engaging in various forms of bill collector harassment including, but not limited to contacting debtors at their place of employ, placing calls to their homes or mobile phones at unreasonable times, or attempting verbal contact of any kind if the debtor has expressly requested that such calls stop.

Many a plaintiff has resorted to a debt collector lawsuit when bill collectors - sometimes attempting to collect on an account that has already been paid due to outdated information - continue debt collector harassment.

However, in this instance the defendant is not a debt collector trying to pursue a consumer for payment. Rather, the retailer was alleged to be marketing products via text messaging to prospective customers. Unlike answering calls placed to a landline (aside from collect calls), consumers pay for their mobile minutes, and in the absence of a Plan that doesn't place a cap on usage, those minutes can add up and results in an unwelcome cost to the consumer.

The Telephone Consumer Protection Act is in the consumer's corner

The TCPA carries specific guidance as to what is, and isn't allowed - especially within the context of robo calls, automated systems and pre-recorded messaging. The lead plaintiff in the class action TCPA lawsuit, Alex Soular alleged that SuperAmerica breached those rules.

Soular contends that he received a number of text messages to his mobile phone from SuperAmerica, advertising various products. Soular claimed the unwanted spam broke the rules.

Plaintiff claims text messages were unauthorized and unwanted

"As part of their effort to promote business, defendants engaged in an especially deleterious form of marketing: the transmission of unauthorized advertisements, in the form of 'text message' calls to the cellular telephones of consumers throughout the nation," Soular alleged.

But SuperAmerica pushed back, suggesting that it in fact did not breach rules against prerecorded calls and automated telephone messages given that "significant human intervention" was involved in both the creation, and the transmission of the messages at issue.

The defendant also asserted they, indeed had permission to contact Soular and class members who allegedly reached out to SuperAmerica for information on special offers and merchandise, and that plaintiffs had willingly provided their mobile numbers in order to receive notification of special offers.

Thus, there was implied consent, or so said SuperAmerica.

In the end, the two sides agreed to settle in February of last year. That settlement was worth $3.5 million.

The TCPA lawsuit is Alex Soular et al. v. Northern Tier Energy LP, Northern Tier Energy LLC, Northern Tier Retail Holdings LLC and Northern Tier Retail LLC, d/ b/a SuperAmerica, Case No. 0:15-cv-00556, in the US District Court for the District of Minnesota.

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