Dick’s Sporting Goods Inc. must continue to fight claims that the company sent an attorney text messages in violation of the Telephone Consumer Protection Act (TCPA), but not on a class-wide basis. According to the complaint, plaintiff enrolled in Dick’s mobile alerts program by texting “JOIN” to a short code. Several months later, plaintiff texted “STOP” to the same short code to opt out, but alleges that Dick’s still sent nine additional autodialed alert texts in violation of the TCPA. A California federal district court rejected Dick’s argument that plaintiff lacked standing in light of the Supreme Court’s decision in Spokeo. But the court also found that plaintiff Phillip Nghiem’s claims were not typical of the proposed class. The court noted that Nghiem had represented other plaintiffs in TCPA cases on at least six occasions, and that his law firm sent a total of five demand letters to Dick’s and its subsidiary on behalf of other clients alleging TCPA violations. Moreover, Dick’s text message alert program was just one of several text programs plaintiff Nghiem signed up for within the same time period. In contrast, the court noted that the “typical member of the class signed up for [Dick’s] mobile alerts program because he or she was undisputedly interested in [Dick’s] merchandise and looking to score a bargain.” The court found sufficient evidence to question whether plaintiff Nghiem could have suffered an actual invasion of privacy if he signed up for the text alerts for the specific purpose of finding a TCPA violation that could support a lawsuit, and concluded that he could not fairly and adequately protect the interests of the class.

TIP: This case is a reminder that plaintiff’s attorneys continue to bring cases where companies send marketing texts without first obtaining prior, written, signed consent, including where that consent has been revoked.