Last week, a putative class action complaint was filed in the United States District Court for the District of Connecticut alleging that Edible Arrangements, LLC (“EA”) sent automated text message advertisements without obtaining the prior express written consent of recipients in violation of the Telephone Consumer Protection Act (“TCPA”). The TCPA class action suit seeks statutory damages of $500 for each and every text message sent by EA in violation of the TCPA, treble damages of up to $1,500 per text, as well as injunctive relief and attorneys’ fees.
How is Edible Arrangements Alleged to Have Violated the TCPA?
TCPA Class Action Allegations Against Edible Arrangements
According to the complaint, “[w]ithin the last four years, [EA] began placing text messages to Plaintiff’s cellular telephone number . . . .” The complaint alleges that advertisements, such as “‘Edible’ Save 20% on your Easter basket! The perfect dessert for kids & the whole family- order today,” were sent to the class representative’s cellular telephone via text message using an automated telephone dialing system. The plaintiff further alleges that EA obtained his cellular telephone number “through unknown means.”
The TCPA class action complaint seeks to certify a class of “[a]ll persons within the United States who did not provide [EA] clear and conspicuous prior express written consent to send automated telemarketing text messages and who received one or more automated telemarketing text messages, from or on behalf of [EA], to said person’s cellular telephone, made through the use of any automatic telephone dialing system within the four years prior to the filing of the Complaint” EA has not yet been served with process.
As we previously blogged, the United States Supreme Court recently made it even more difficult to get rid of TCPA class action lawsuits. As such, in order to avoid the situation EA now finds itself in, telemarketers should consult with competent counsel concerning their telemarketing practices and procedures.