JCPenney Class Action Says Store Sent 132 Unwanted Text Messages

JCPenney faces a class action lawsuit alleging that their unsolicited text messages are in violation of the Telephone Consumer Protection Act.

Plaintiff Janimary Hernandez recently filed a class action lawsuit against J.C. Penney Company Inc., alleging that the department store sends texts to consumers which violate the Telephone Consumer Protection Act (TCPA).

The TCPA was enacted by Congress in 1991 to protect consumers from robocalls and harassing call practices.

Under the TCPA, parties must obtain express prior consent in order to place calls using an automatic dialing system or prerecorded voice.

Specifically, the TCPA makes it “unlawful for any person […] to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice […] to any telephone number assigned to a paging service, cellular telephone service […] or any service for which the called party is charged for the call.”

In 2015, the Act was expanded to include harassing behavior via text messages. The change followed years of consumers complaining that the Act did not cover harassing, automated text messages.

Hernandez claims that JCPenney violated the TCPA by sending frequent, unsolicited texts to her cell phone after shopping in a store.

In December 2016, Hernandez says she shopped at a JCPenney and gave her phone number to a retail associate when offered a discount.

Hernandez claims that she never consented to receiving additional promotional and marketing text messages, but has received 132 text messages to date.

The text messages Hernandez received included offers for percentages off and item specific price drops. In her JCPenney TCPA class action, Hernandez argues that these texts messages were harassing.

“The text messages sent to Plaintiff HERNANDEZ were unwanted, annoying, and a nuisance,” Hernandez states. “The messages were disruptive and diminished the Plaintiff’s usage and enjoyment of her phone.”

Hernandez claims that the disturbance caused by these texts messages is sufficient damage to bring her JCPenney TCPA class action lawsuit.

Following a Second Circuit decision in Mejia v. Time Warner Cable Inc., plaintiffs bringing claims under TCPA need only show that the calls or text messages by nature “invade the privacy and disturb the solitude of their recipients.”

The JCPenney class action lawsuit also claims that JCPenney’s practice of sending unsolicited texts is widespread, prompting Hernandez to file her suit as a class action opposed to an individual lawsuit.

Hernandez seeks to represent a Class of people who received unsolicited texts messages from JCPenney in the past four years. Alternatively, she seeks to represent a Class of the same individuals who live in New York.

The JCPenney TCPA class action seeks statutory damages, court costs, and attorneys’ fees.

Plaintiffs are represented by C.K. Lee and Anne Seelig of Lee Litigation Group PLLC.

The JCPenney Unwanted Text Messages Class Action Lawsuit is Hernandez v. J. C. Penney Company Inc., Case No. 1:18-cv-05759, in the U.S. District Court for the Southern District of New York.

Join a Free TCPA Class Action Lawsuit Investigation

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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