Dick’s Sporting Goods Faces Unwanted Text Messages Allegations

Retail giant Dick’s Sporting goods is facing allegations of violating the Telephone Consumer Protection Act (TCPA), after allegedly sending a number of unwanted text messages to a consumer.

Plaintiff Phillip Nghiem filed the proposed TCPA class action against Dick’s Sporting Goods, stating that even though he initially signed up to receive text alerts on athletic shoes the company continued to send unwanted text messages even after opting out.

Filed in California federal court, Nghiem also stated the company had tried to force him out of the proposed class action lawsuit after citing the company’s arbitration.

Nghiem stated that Dick’s arbitration clause, featured on the terms and conditions segment of the company’s website, does not make the company immune to the federal law.

“Plaintiff never signed that agreement or otherwise manifested his assent; instead, it is a pure ‘browsewrap,’ which means that defendants must show that plaintiff had ‘actual or constructive knowledge’ of its terms in order to compel arbitration,” Nghiem argued.

Unwanted Text Messages, Other Allegations

Nghiem stated that even though the arbitration clause was present on the company’ website, he had still signed up for the alerts through his cellphone. This means the text spam should have ended when Nghiem had tried to opt out of receiving the messages.

Dick’s Sporting Goods attorneys argued that Nghiem would have been aware of the arbitration and class action waivers, or at least one of them, when signing the terms and conditions to receive the messages.

Furthermore, Dick’s Sporting representatives pointed out Nghiem happens to be a lawyer, and has represented at least five different TCPA plaintiffs.

Essentially Dick’s Sporting Goods states that with Nghiem’s legal background, he should have been well aware of the arbitration clause. Furthermore Dick’s cites the AT&T Mobility v. Concepcion Supreme Court decision in 2011, which rejected arguments regarding restrictions on arbitration clauses.

The entire argument comes down to whether or not Dick’s Sporting Goods website would have adequate explanation for customers when going over the terms and conditions, including whether or not they fully understand the arbitration clause.

Nghiem filed the TCPA lawsuit in January 2016, after receiving a number of unwanted text messages in May 2015.

Even though he knew he would be receiving text messages from an auto dialing program, the company stated that it would stop sending the messages if Nghiem texted the message “stop.”

The company allegedly failed to comply, delivering eight additional text spam messages.

“Accordingly, all such SMS text messages plaintiff received without consent were unauthorized and violations of the TCPA,” Nghiem stated in his original complaint.

Nghiem is also seeking certification of a national class of consumers who also may have received a number of unwanted text messages from Dick’s Sporting Goods. He estimates that the proposed class numbers could be in the thousands, creating a need for consolidation.

Nghiem’s TCPA lawsuit is seeking statutory and treble damages, as well as an injunction to block Dick’s Sporting Goods from sending unwanted text spam.

The Dick’s Sporting Goods Unwanted Text Messages Lawsuit is Phillip N. v. Dick’s Sporting Goods Inc., Case No. 8:16-cv-00097, in the U.S. District Court for the Central District of California.

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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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