Long code auto dialer doesn’t provide cover, plaintiff says

Tricky Dials

Weight-loss megabrand Jenny Craig settled a Telephone Consumer Privacy Act (TCPA) class action back in January. The complaint, brought as a putative class action by Florida consumer Zoey Bloom, alleged that defendant Jenny Craig sent her text messages in March and April 2018 in violation of the TCPA, resulting in the invasion of privacy, harassment, aggravation and disruption of the daily life of thousands of individuals and sought monetary damages.

According to the complaint, the defendant sent the plaintiff unsolicited text messages using an automatic telephone dialing system, and the text messages constituted telemarketing because they encouraged the future purchase of defendant’s weight loss services. The plaintiff alleged that the messages were sent from a long code system that enabled the defendant “to send SMS text messages en masse, while deceiving recipients into believing that the message was personalized and sent from a telephone number operated by an individual.”

Bloom, of course, alleged that she had never given consent to receive these messages and sued Jenny Craig for willful and knowing violations of the TCPA.

The case, filed in May 2018 in the Southern District of Florida, settled in Jan. 2019.

Consumers who received similar texts between May 2014 and Sept. 2018 can apply for benefits from a $3 million fund that is made available by Jenny Craig. Although there are approximately 620,000 possible class members, individual awards are to be determined

The Takeaway

Companies sending promotional text messages to consumers should be aware of the obligations set forth under the TCPA, including obtaining proper consumer consent before sending promotional text messages using auto dialers. The requirements for compliance with the TCPA are complex and the statutory damages for noncompliance add up quickly.