Woman Files Spam Text Class Action Lawsuit Against Retailer Hot Topic

A woman recently filed a spam text class action lawsuit against Hot Topic, alleging the retailer violated the Telephone Consumer Protection Act (TCPA) when it sent her unwanted text messages.

The plaintiff, Diana Soukhaphonh, received a text message in November 2015 confirming her subscription to Hot Topic text alerts. According to the spam text class action lawsuit, she recalled giving her cell phone number upon making a purchase but did not wish to receive any texts from the retailer.

Hot Topic’s position is that Soukhaphonh made an online purchase in May 2015 that included a pre-checked box that indicated, “Yes, I want to receive text messages about special events and offers.” Hot Topic claims Soukhaphonh never unchecked that box, which means she gave consent to enroll in their text message program.

Spam Text Class Action Lawsuit Alleges Employees Opted in Plaintiff’s Phone Number

Hot Topic moved for summary judgment because the company believed the evidence proved Soukhaphonh had given permission.

U.S. District Judge Dolly M. Gee disagreed and said whether or not Soukhaphonh chose to receive the alerts was still unanswered and “a triable issue of fact,” allowing the spam text class action lawsuit to move forward.

“Plaintiff’s attestation that she did not opt into text message alerts is not ‘blatantly contradicted by the record so that no reasonable jury could believe it,'” said Judge Gee. “There is a genuine dispute of material fact regarding whether plaintiff opted into receiving text messages during her May 26, 2015, online transaction. The resolution of this disputed fact affects not only whether the first text message introduced or included an advertisement or constituted telemarketing, but also whether plaintiff provided prior express consent and/or prior express written consent for that text message.”

Hot Topic says the company used the Blue Martini e-commerce platform from September 2006 through September 2015 that recorded and stored information from all online transactions. Recorded information included the opting in or out of text messages and emails.

A look at the database backup on April 1, 2015, does not indicate that Soukhaphonh wished to receive text messages, but a look at the June 1, 2015, backup indicates she did wish to receive texts. Hot Topic claims the only way that choice could have been changed was by Soukhaphonh when she checked out of her May online transaction.

Soukhaphonh’s spam text class action lawsuit contends Hot Topic management could have changed her choice for text messaging by using a vendor platform used for the store’s loyalty program. That claim was based on testimony from former internet development team manager Jessica Chien. Hot Topic store employees could have infiltrated Blue Martini’s records to enable customers to receive text messages as well, said a Hot Topic senior vice president.

The Spam Text Class Action Lawsuit is Diana Soukhaphonh v. Hot Topic, Inc., Case No. 2:16-cv-05124 in the U.S. District Court for the Central District of California.

UPDATE: August 2019, the Hot Topic text ad 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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