Rite Aid Corporation (“Rite Aid”) was recently sued in the United States District Court for the Southern District of California for allegedly sending unsolicited commercial text messages in violation of the Telephone Consumer Protection Act (the “TCPA”).
A Real Pill of a TCPA Class Action Lawsuit
The class action complaint alleges that Rite Aid sent multiple unsolicited text messages to the plaintiff via an automatic telephone dialing system requesting that the plaintiff subscribe for prescription alerts. The plaintiff denied ever providing Rite Aid with his mobile telephone number at any time – let alone giving prior express consent to receive text messages from Rite Aid. Following receipt of the first text message, the plaintiff replied “STOP” in an effort to opt out of the receipt of further telephonic communications from Rite Aid. Immediately in response, Rite Aid sent another text message confirming that Plaintiff was unsubscribed from its prescription alerts service. The plaintiff alleges that this opt out confirmation text message violated the TCPA as well.
Two days later, the plaintiff alleges that he received another (identical) unsolicited prescription alert from Rite Aid by text message. He again replied “STOP” and again received a confirmation text message indicating that he had successfully opted out from receiving future text messages.
The plaintiff seeks to represent a class of persons throughout the United States who received similar text messages from Rite Aid or its agents during the past four years. The next step is for Rite Aid to respond to the complaint – by motion to dismiss or answer to the complaint.
We note that in general, courts have held that text messages sent in response to opt out requests that simply confirm the opt out do not violate the TCPA. However, the initial commercial text message and any commercial text messages sent after the opt out request are generally violative of the TCPA – unless the defendant can establish that the plaintiff provided prior express consent to receive them. Of course, if the subject text messages had been sent after October 16, 2013, Rite Aid would have to prove that it received prior express written consent from the plaintiff.