NASCAR faces class-action suit over SMS
A class action lawsuit has been filed against NASCAR alleging that the company sent unsolicited text messages.
The plaintiff in the case argues that she never asked to receive text messages from NASCAR and that the company sent her an unsolicited message earlier this year advertising a mobile app that would enable her to watch races on her handset. The suit is the latest example of marketers running into trouble by not gaining proper consent for their mobile messaging strategies.
?We only have one side of the story at this point, so it?s too early to tell whether NASCAR did anything wrong,? said Gonzalo E. Mon, attorney with Kelley Drye & Warren LLP, Washington, DC.
?Nevertheless, this case serves as a reminder that failure to get consent is likely to lead to lawsuits,? he said.
?And once a company finds itself in one of these lawsuits, it can be very expensive to get out.?
NASCAR sanctions and governs auto racing events and is one of the most viewed professional sports in the United States.
$5 million mistake?
The suit was filed in the U.S. District Court for the Southern District of California on behalf of Badie Jaber.
The plaintiff claims that when she replied to opt-out of receiving any future messages, NASCAR sent her a second unsolicited message confirming the opt-out.
?Plaintiff and members of the Class and Sub-Class were harmed by the acts of Defendant in at least the following ways: Defendant, either directly or through their agents, illegally contacted Plaintiff and the Class members via their cellular telephones by using an unsolicited and/or confirmatory text message, thereby causing Plaintiff and the Class members to incur certain cellular telephone charges or reduce cellular telephone time for which Plaintiff and the Class members previously paid, and invading the privacy of said Plaintiff and the Class members,? the claim says.
The plaintiff seeks up to $1,500 in damages for each call in violation of the TCPA.
When aggregated among a proposed class numbering tens of thousands, the damages would be over $5 million.
NASCAR maintains it did nothing illegal.
?NASCAR has yet to be served for the suit, and to my knowledge we haven?t heard from the plaintiff nor her representative,? said NASCAR spokesman David Higdon.
?We don?t engage in this type of text campaign and did not send out the alleged text," he said.
?Based on what we have seen, the plaintiff has conducted little or no due diligence on this matter.?
The courts have repeatedly found that sending unsolicited text messages is a violation of the TCPA, yet companies continue to run afoul the law.
For example, a court found that a Twentieth Century Fox SMS campaign violated the TCPA in April last year (see story).
Also last year, a federal district court in Chicago held that SMS messages that are sent to consumers without their consent do violate the TCPA (see story).
Earlier this year, a class-action complaint against Twitter alleged that the company violated the TCPA by sending an SMS confirmation to confirm consumers' opt-out of future communications (see story).
To avoid facing lawsuits such as this one, companies should consult the Mobile Marketing Association?s guidelines and ensure they make the correct disclosures and follow the correct steps to get consent, per Mr. Mon.
?Courts have repeatedly held that companies must obtain express consent before they send text messages to consumers,? Mr. Mon said.
Chantal Tode is associate editor on Mobile Marketer, New York