Sarah Mirando  |  August 2, 2012

Category: Legal News

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Microsoft Can’t Dismiss Text Spam Class Action Lawsuit

By Matt O’Donnell

 

text spam lawsuitA federal judge refused to dismiss a potential class action lawsuit alleging Microsoft sent text spam to consumers, rejecting Microsoft’s argument that the Plaintiff could not prove he personally suffered any actual harm.
 

The Microsoft text spam class action lawsuit dates back to August 2011, when Illinois resident Neil Smith sued Microsoft for sending unsolicited text ads promoting Xbox gaming systems. Smith alleges in the class action lawsuit that the text advertisements violated the Telephone Consumer Protection Act (TCPA), which prohibits companies from using automated dialing systems to make calls to cell phones unless the recipients have consented. Violating the TCPA carries a $1,500 penalty per violation, and can mean hundreds of dollars in compensation to Class Members of TCPA class action settlements.

Microsoft tried to dismiss the class action lawsuit by arguing that Smith had no “standing” to bring the case because he did not show he suffered an economic injury; specifically, that his carrier charged him any extra fees for the texts.

U.S. District Judge Janis Sammartino rejected the argument, ruling that federal law prohibiting text spam allows people to sue regardless of whether they had to pay extra to receive the messages. Sammartino ruled that Smith can proceed with the class action lawsuit even if the text ads didn’t cost him money.

“The TCPA, by its unambiguous terms, does not limit protection to instances in which a Plaintiff is charged individually, or even incrementally, for each text message,” Sammartino wrote.

The Microsoft text spam class action lawsuit is seeking to represent a proposed class of all U.S. residents who received one or more unauthorized text message ads from Microsoft. Smith is asking the court to ban Microsoft from “all wireless spam activities,” in addition to an award of actual and statutory damages to Class Members, and a minimum of $500 for each TCPA violation.

The case is Neil Smith v. Microsoft Corporation, Case No. 11-cv-1958 JLS (BGS), U.S. District Court, Southern District of California.

 

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Updated August 2nd, 2012

 

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