Hooters TCPA Class Action Lawsuit Survives Motion to Dismiss

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A Georgia federal judge has refused to dismiss a class action lawsuit alleging Hooters of America LLC sent text message advertisements in violation of the Telephone Consumer Protection Act (TCPA).

On Wednesday, U.S. District Judge Leigh Martin May refused to dismiss the Hooters class action lawsuit or strike the plaintiffs’ claims, finding that sending a single text message that allegedly violates the TCPA is sufficient to establish standing for the recipient of the text message.

Hooters had argued that lead plaintiff Michael Etzel failed to establish the type of concrete and particularized harm that the U.S. Supreme Court ruled was necessary in order to assert claims for statutory violations.

The restaurant argued that the receipt of a single text message “does not constitute an injury-in-fact sufficient to satisfy Article III standing,” and that therefore the TCPA class action lawsuit should be dismissed.

Judge May disagreed with this argument and denied the motion by Hooters to dismiss the TCPA class action lawsuit and denied its motion to strike Class allegations.

The Hooters class action lawsuit asserts the restaurant chain violated the TCPA by sending thousands of unsolicited text message advertisements in January 2015. The text message reportedly encouraged the recipient to text short code “36832” to obtain offers, discounts and other promotional text messages from Hooters.

Individuals who texted the short code were reportedly automatically enrolled in Hooters mClub and received periodic text message advertisements that were sent via an automatic telephone dialing system.

Etzel says he initially opted-in by sending a text message to the short code, but that he sent a “STOP” message to the short code before Jan. 28, 2015. He claims he received a text message from Hooters after he opted out.

According to the Hooters TCPA class action lawsuit, a company called State of Text received text messages sent to the short code and maintained the database of cell phone numbers that would be contacted for future Hooters promotions. State of Text also kept the opt-in and opt-out dates for the customers included in the database, the court documents state.

Hooters reportedly terminated its contract with State of Text on Dec. 31, 2014, and selected a company called SilverPop to send text message advertisements.

“Then, on or about January 28, 2015, Defendant, through SilverPop, sent a text message to the numbers in the database, including Plaintiff and thousands of others who had not provided their express written consent to receive such text messages,” the judge’s order states.

Etzel claims that, after he received the Jan. 28, 2015 text message, he sent an email to Hooters explaining that he received a text message even though he had opted out of receiving such communication.

He says he received a response from Hooters indicating that their previous text message company (State of Text) had provided an erroneous list of subscribers and that the new provider (SilverPop) sent text messages to the list. Hooters reportedly told Etzel that it would remove him from the list of subscribers.

Etzel is represented by W. Pitts Carr and Alex D. Weatherby of Carr & Weatherby LLP; Nicholas P. Panayotopoulos and Nancy F. Rigby of Weinberg Wheeler Hudgins Gunn & Dial LLC; and David Ghattas of the Law Office of David Ghattas.

The Hooters TCPA Class Action Lawsuit is Michael Etzel v. Hooters of America LLC, Case No. 1:15-cv-01055, in the U.S. District Court for the Northern District of Georgia.

UPDATE: On Aug. 9, 2017, Hooters of America LLC agreed to settle class action claims that it sent consumers unwanted text messages for $1.3 million in gift cards.

UPDATE 2: September 2017, the Hooters text message spam class action settlement is now open. Click here to file a claim.

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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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