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On June 14, 2013, California federal judge Irma E. Gonzalez rejected J.C. Penney Co. Inc.’s attempt to dismiss a class action lawsuit accusing the company of sending unsolicited text messages, ruling that plaintiffs showed reasonable evidence that the messages came from an automated system – a violation of the federal Telephone Consumer Protection Act (TCPA).
Lead plaintiff Tracy Maier filed the class action lawsuit against J.C. Penny in January 2013 after receiving an unsolicited text message from the company encouraging her to check out the retailer’s latest deals and reply back to the advertisement. Maier says the text violated the TCPA, which prohibits companies from contacting consumers on their cell phones without their prior express consent. The TCPA further prohibits companies from an automatic dialing system to contact consumers. Maeir alleges in the class action lawsuit that the J.C. Penney text she received was just one of a “mass transmission” of similar texts set by the retailer.
J.C. Penny filed motion to dismiss Maier’s class action lawsuit, arguing that her claim was unfounded based on insufficient evidence that the text she received was from an automatic dialing system. J.C. Penney also argued that Maier received the text after submitting her cell phone number to the company’s rewards program, making it more likely that an employee had sent the message to her, not an automatic dialing system.
Judge Gonzalez disagreed, ruling that factual evidence outside of her complaint was enough for Maier to sufficiently plead her claims and move forward with the class action lawsuit.
“Because this court must construe and draw all reasonable inferences from factual allegations in favor of the nonmoving party… the court finds that the generic and impersonal content of the text message supports the reasonable inference of use of an ATDS,” Gonzalez said.
Maier is seeking up to $500 in damages for each of the improper texts sent out by the retailer to consumers covered by the class action lawsuit.
The J.C. Penney text class action lawsuit notes that, unlike most other advertisements, text messages can cost consumers money because their wireless carrier places a limit on the texts they can receive each month and charges for each text.
The J.C. Penney Text Spam Class Action Lawsuit case is Tracy Maier v. J.C. Penney Corp. Inc., Case No. 13-cv-00163, in the U.S. District Court for the Southern District of California.
If you believe that you or a loved one has been the victim of a TCPA violation, you have legal options. Please visit the Text Message Spam Cell Phone TCPA Class Action Lawsuit Investigation for more information.
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