Plaintiffs in a class action against Lucky Brand Dungarees may be entitled to up to $100 each for receiving unsolicited promotional texts advertising discounted jeans in violation of the Telephone Consumer Protection Act (TCPA).
A federal district court judge in California granted preliminary approval to a settlement in the suit, estimated to cost Lucky nearly $10 million for the roughly 216,711 class members. Between August 24 and September 15, 2008, Lucky’s marketers sent nine different text messages to consumers without their prior express consent as part of a back-to-school promotion, including statements like “Get $25 off Lucky Brand Jeans.”
Under the terms of the settlement, defendants agreed to create a fund totaling $9.9 million. After payment of settlement administration expenses, the incentive award to the named plaintiffs, and the class counsel fee award (not to exceed $2.4 million), class members will be able to request payments of up to $100 each. If the total amount required to pay each approved claim would exceed the amount in the settlement fund at that point, each class member will receive a pro rata share.
The marketing partner defendants also agreed that they would receive express consent – in the form of clear and conspicuous writing – before sending text messages in the future. Furthermore, the claim form will provide class members with the option to remove their cellular telephone number from databases from which future text messages could be sent by or on behalf of the defendants.
Subject to final approval at a hearing scheduled for May 10, 2013, U.S. District Court Judge Maxine M. Chesney found the settlement “fair, reasonable, adequate, and in the best interests of the class.”
To read the settlement agreement in Robles v. Lucky Brand, click here.
To read the court’s order preliminarily approving the settlement, click here.
Why it matters: The settlement is the most recent example of a text message ad campaign gone wrong. And while $10 million is not pocket change, other recent defendants in similar TCPA suits have agreed to pay substantially more, including Sallie Mae’s $24 million agreement and Jiffy Lube’s $47 million agreement. Papa John’s pizza chain is also currently facing potential liability of up to $250 million in a recently certified TCPA class action.