On November 30, 2014, a class action complaint was filed in the United States District Court for the Southern District of Florida against Domino’s Pizza, LLC (“Domino’s”) and mobile marketer MoGreet, Inc. (“MoGreet”) alleging violations of the Telephone Consumer Protection Act (“TCPA”).  Specifically, the complaint alleges that Domino’s and MoGreet violated the TCPA by sending text message advertisements to consumers after receiving their “STOP” instructions.  The named plaintiff seeks to certify four (4) separate classes in the action, and has already filed a motion for class certification.

TCPA Class Action Allegations Against Domino’s

According to the complaint, Domino’s, through its mobile marketer MoGreet, sends multiple text messages to consumers offering discounts or deals on Domino’s pizza.  Although these consumers may have initially given consent, according to the complaint, Domino’s and MoGreet continue to send text message advertising to consumers even after receiving a proper “STOP” command.  With respect to the class representative, according to the complaint he received a text message from MoGreet offering Domino’s pizza discounts after sending a “STOP” message, and only one day after MoGreet had settled a separate TCPA class action lawsuit for $16 million on behalf of itself and, among others, Domino’s.

TCPA Putative Class

The complaint seeks certification for 4 classes and one sub-class.  All proposed classes are nationwide, and seek potential plaintiffs who received text message advertisements from MoGreet, or on behalf of Domino’s, between March 6, 2014 and the date that the classes are certified by the Court.  Additionally, in what has become a typical move by class action plaintiffs, a motion for class certification has already been filed.  The filing was done to prevent either Domino’s or MoGreet from mooting the litigation by offering the class representative full relief prior to answering the complaint.  The motion for class certification expressly requests that the motion be stayed by the Court until the plaintiff has had an opportunity to engage in discovery.

Protect Yourself

Although in its early stages, this TCPA class action may subject Domino’s and MoGreet to significant monetary damages.  The fact that MoGreet allegedly continued to send text messages in violation of the TCPA after settling another nationwide TCPA class action may affect the impact of a damages assessment, as the violation may appear willful to a court.  As we have previously blogged, TCPA lawsuits are on the rise and it is important that businesses engage in telemarketing best practices in an effort to avoid a TCPA lawsuit.

This topic should be of interest to any company or individual engaging in text message marketing and telemarketing, as well as corporate and in-house counsel.