Wise Media Text Spam Class Action Lawsuit Moves Forward

By Sarah Mirando | July 1, 2013

Category: Legal News

By Anne Bucher

Wise Media text spam lawsuit A federal judge has allowed a class action lawsuit against an alleged cell phone spammer to proceed and denied a motion to dismiss the case by one of the defendants.

Lead plaintiffs in the class action lawsuit include Edward Fields, Cathie O’Hanks, Erik Kristianson, Richard Parmentier, Kimberly Brewster and Kristian Kunder. They initially filed their complaint in October 2012 after they received unsolicited text messages from Wise Media. These text messages contained information about the company’s subscription plans, which included horoscope updates, flirting tips, weight loss advice and celebrity gossip. Wise media sent the text messages using technology that produced cell phone numbers through a random sequential number generator.

According to the class action lawsuit, a typical initial text message would read: “Lovegenietips Flirting Tips; 3msg/week for $9.99/m T&Cs: lovegenietips.com Msg&data rates may apply. Reply HELP for help, STOP to cancel. PIN ****”.

Wise Media used aggregators, including co-defendants Mobile Messenger Americas, mBlox Incorporated and Motricity, to act as middlemen between the company and cell phone companies. The aggregators would put charges on the cell phone bills even if the customer never responded to the texts. This process of placing unauthorized or deceptive charges on a cell phone bill is called “cramming.”

In their class action lawsuit, the plaintiffs allege that they never consented to be charged for the subscription plans. Some of the plaintiffs sent a reply message rejecting enrollment, some never responded to the initial message, and some never received the initial message because their phones were not even programmed to receive text messages. However, all of the plaintiffs were enrolled in the subscription plans, regardless of their response. Plaintiffs insist that they never had any relationship with any of the defendants prior to receiving the initial text message.

The plaintiffs accuse the defendants of conversion, negligence and unjust enrichment. They also accuse the defendants of violating the California Business and Professions Code. Judge William Alsup, a federal judge in the U.S. District Court for the Northern District of California, found that the class action lawsuit could proceed because all of the causes of action rely “on the same unified course of fraudulent conduct, namely the allegedly fraudulent cramming scheme whereby plaintiffs were enrolled in and charged for subscription plans without their permission.”

In his opinion, Judge Alsup was addressing the issue of whether all claims against Mobile Messenger could be dismissed. He found that the plaintiffs had appropriately included Mobile Messenger in the class action lawsuit. However, he found that the plaintiffs did not prove that they had a claim against Mobile Messenger under California’s Unfair Competition Law. He has allowed the plaintiffs to file a motion to amend the complaint by July 12, 2013.

This class action lawsuit is not the first to be filed against Wise Media. A similar lawsuit was filed against the company last spring (Humble v. Wise Media).

The Wise Media Text Spam Class Action Lawsuit case is Edward Fields, et al. v. Wise Media, LLC, et al., Case No. C 12-05160 WHA, in the U.S. District Court for the Northern District of California.

If you received unsolicited text messages from a company, you may have a legal claim. Learn more about your rights and get a free case review at the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation. You may be entitled to hundreds or thousands of dollars in compensation.