When companies advertise text message programs, the Mobile Marketing Association requires them to disclose, among other things, the number of messages subscribers may receive. Although that may seem like a straightforward requirement, it has caused a lot of trouble for some companies. For example, we previously posted about a lawsuit in which a plaintiff argued that the Pittsburgh Penguins violated the Telephone Consumer Protection Act by sending more text messages than they had initially disclosed. A recent case involving a text message promotion run by the Buffalo Bills shows how costly these types of mistakes can be.
In 2012, a consumer signed up to receive text messages from the Bills. The terms of the text message program disclosed that “you will be opted in to receive 3-5 messages per week for a period of 12 months.” A confirmation message also referred to “up to 5msgs/week.” The plaintiff claimed that shortly after signing up, he received six texts in one week and seven texts in another week. In the lawsuit, he argued that the one additional messages received during the first week and the two additional messages received during the second week were sent without consent and, thus, in violation of the TCPA.
After a hard-fought lawsuit, the Bills secured preliminary approval of a $3 million settlement. As part of the deal, the Bills will provide class members who submit valid claims up to $2.5 million worth of debit cards good at the team’s stadium or online store. The Bills must also pay over $500,000 in attorneys’ fees.
This case serves as a reminder that companies need to ensure they carefully draft the terms for their text message programs and that their programs are run in accordance with those terms. Even a small deviation could result in a lawsuit that costs millions of dollars.