DraftKings must face a text spam class action lawsuit over alleged violations of the Telephone Consumer Protection Act of TCPA, a federal judge has ruled.
U.S. District Court Judge Wood denied DraftKings’ motion to dismiss the text spam class action lawsuit, reasoning that Plaintiff David Izsak had alleged sufficient facts to support the conclusion that an automatics telephone dialing system was used to send unwanted text messages.
However, the judge did grant DraftKings motion to dismiss a common law conversion claim, characterizing the decrease in his data stash as de minimis damages. The judge essentially maintains that Iszak’s damages are “too small to warrant treatment in the judicial system,” comparing it to “lost ink, toner or paper.”
Judge Wood compared the text spam class action lawsuit to another lawsuit involving a promotional fax where a conversion claim was dismissed on similar grounds.
“In fact, application of the de minimis doctrine may be even more appropriate here, where the loss is similarly trivial but not nearly as concrete as the lost ink, toner, or paper at issue in the TCPA fax cases,” the judge said. “The cost imposed, or the data lost, by the receipt of the alleged single unwanted text message — if there is any actual financial loss at all — is no doubt miniscule. And any trivial inconvenience or expense can be remedied by Izsak’s TCPA claim.”
Text Spam Class Action Lawsuit Allegations
In October 2014, Izsak expressed his displeasure with DraftKings advertising tactics by filing a text spam class action lawsuit in Illinois federal court.
He claims that on September 1, 2014, he received an unsolicited text message from DraftKings, inviting him to play fantasy sport. Izsak claims a violation of the TCPA and common law conversion.
According to Izsak, DraftKings used automated equipment to send unwanted text messages en masse – without human intervention – to unsuspecting people, thus violating the TCPA.
For his common law conversion claim, Izsak’s argued that the “text utilized his wireless data which made the data otherwise unusable and decreased the performance of his cellular phone.”
He seeks an injunction to have DraftKings cease all unwanted text messages and award damages.
And Judge Wood agreed, ruling that there was enough for the text spam class action lawsuit to proceed at this point saying the text message Iszak received from calling the number associated with the text “plausibly suggest[s]” there was automation.
“In sum, while certain of Izsak’s allegations might be viewed as undermining his assertion that an” automatic telephone dialing system was used to send the “text message without any human intervention, the additional allegations in the complaint, taken together, are sufficient to allow the court to reasonably infer that DraftKings sent Izsak a text message using equipment with some automated capacity,” the judge said.
TCPA violations can reach astronomical numbers. For each text sent, a defendant found guilty of violating the TCPA can be held liable for a minimum of $500.
The DraftKings Text Spam Class Action Lawsuit is Izsak v. DraftKings, Inc., Case No. 1:14-cv-07952, in the U.S. District Court for the Northern District of Illinois.
Join a Free TCPA Class Action Lawsuit Investigation
If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.
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