Two separate class actions filed against NASCAR and an internet gaming company individually, allege that the two violated the Telephone Consumer Protection Act (“TCPA”) by sending text messages to consumers’ cell phones using an automated telephone dialing system without the consumers’ prior express consent. Furthermore, the complaints allege that when the consumer replied “end” or “stop,” the consumer was sent a further unsolicited text message confirming that the consumer had been removed from the SMS program, which plaintiffs allege also violated the TCPA. Under the TCPA, advertisers are required to obtain prior express consent from a consumer before sending text messages using an automated dialing system or an artificial or prerecorded voice to the consumer’s cell phone. These cases follow a recently settled lawsuit brought against Twitter (by the same attorney) which suit made the same allegations.

TIP:   When sending text messages to consumers, confirm that you have obtained prior express consent. If confirming an opt cut, consider using other mechanisms like voice or email.