On September 6, 2016, a putative class action lawsuit was filed in the United States District Court for the Western District of Washington by two plaintiffs alleging that T-Mobile USA, Inc. (“T-Mobile”) and Subway Sandwich Shops, Inc. (“Subway”) violated the Telephone Consumer Protection Act (“TCPA”) in connection with a mobile marketing campaign. The litigation concerns an alleged commercial text advertisement received by the plaintiffs on their respective cellular telephones on September 1, 2016. Soon thereafter, on September 8, 2016, the plaintiffs voluntarily dismissed T-Mobile from the action. The plaintiffs, however, have maintained their claims against Subway.
How did T-Mobile and Subway Allegedly Violate the TCPA?
TCPA Putative Class Action Filed Against T-Mobile and Subway
On September 1, 2016, each of the named plaintiffs allegedly received a commercial text message advertisement on their respective cellular telephones without providing prior express written consent to receive such text messages. The message stated: “This T-Mobile Tuesday, Score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details: http://t-mo.co/.” The plaintiffs allege that they did not provide consent to either T-Mobile or Subway to send such text messages. The plaintiffs seek to certify a class of all persons within the United States who received a similar text message on their respective cellular telephones.
As we blogged last week, the wireless telephone service provider Verizon Wireless Services, LLC was also sued for alleged violations of the TCPA. Indeed, class action attorneys are increasingly filing putative class action claims for alleged violations of the TCPA. In this litigious climate, it is therefore imperative that businesses consult with experienced counsel before beginning any text message marketing campaign.