A San Diego law firm has filed three new mirror text message lawsuits, against NASCAR, the National Football League, and Gamestop Corp, in the U.S. District Court for the Southern District of California. The suits filed on August 10, 2011 accuse the defendants of "sending Plaintiff[s] spam advertisements, via text messages" in violation of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. Each suit seeks injunctive relief and more than $5 million in damages.
The plaintiffs claim not only that initial unsolicited advertising text messages sent by the defendants violated the law, but also that follow-up messages--sent after each plaintiff "opted-out," to confirm removal from the list (e.g., "Thanks. U have successfully opted out of this Verizon Promo Shortcode Campaign.")--were similarly illegal. These types of final confirming messages are required under the Mobile Marketing Association's ("MMA's") U.S. Consumer Best Practices guidelines, which serve as an industry benchmark; compliance with the MMA guidelines is encouraged, if not required, by most mobile carriers. Nonetheless, confirming messages also came under fire in two other recent lawsuits filed by the same San Diego law firm in late April, against Twitter, Inc. and Myspace, Inc. (NOTE: In Moss v. Twitter, Inc., No. 11-CV-906, and Noorpaver v. Myspace, Inc., No. 11-CV-903, the plaintiffs alleged that the final confirming message sent after opt-out was illegal, but admitted to giving consent for previous messages sent by Twitter and Myspace. These three newest cases differ in that all of the messages sent by the defendants are alleged to have been unsolicited, not just the final message confirming termination.) Both the Moss and Noorpaver cases were voluntarily dismissed without prejudice earlier this summer, at the requests of the respective plaintiffs.
As of Friday, August 12, a NASCAR spokesman claimed that NASCAR had not yet been served with a complaint, and in any event, had not sent the texts in question. GameStop and the NFL have not yet publicly commented on the cases.
The new suits are Jaber v. NASCAR Holdings, Inc., No. 11-CV-1783; Karayan v. Gamestop Corp., No. 11-CV-1777; and Emanuel v. NFL Enterprises, LLC, No. 11-CV-1781.