DSW class action over spam text messages dismissed

Update: 

• A judge dismissed a class action lawsuit claiming DSW violated the Telephone Consumer Protection Act by allegedly sending spam text messages to consumers without obtaining their express permission in November 2019. 
• The U.S. Judicial Panel on Multidistrict Litigation filed an order vacating a hearing session order later that same month. 
• DSW withdrew a motion for transfer in the wake of the dismissal. 
• DSW also filed a motion to stay the case pending an MDL transfer motion in the month before its dismissal. 

(Oct. 4, 2019)

A California woman is taking shoe retailer DSW to task for allegedly sending spam text messages.

The legal claim was brought by plaintiff Nicole Austin of Los Angeles. Austin alleges DSW (referenced in the complaint by its current name, Designer Brands Inc.) violated the Telephone Consumer Protection Act (TCPA) by automatically texting cellphone users without their express permission.

According to Austin’s TCPA lawsuit, DSW or one of its representatives had been sending spam text messages to U.S. citizens across the country using an automated telephone dialing system (ATDS). She claims she was first contacted in July 2019 and offered a significant discount and free gift if she would click on a link.

Austin says she was also given the option to cease receiving the text messages by replying “Stop.” She purportedly replied accordingly, but the spam continued. According to her complaint, both the main class and subclass are anticipated to be about 500 people. Under the federal law, each member is entitled to receive at least $500 in damages for TCPA violations.

She seeks to represent a main class and a subclass of persons who received similar text messages. Her proposed class would include those consumers on the receiving end of these texts from the date of the lawsuit filing retroactive to four years.

She also proposes a subclass of spam text recipients whose cell phone numbers have been registered on the National Do Not Call Registry, and who received an unsolicited spam text from DSW or one of it representatives at least once during a 12-month period.

Austin alleges she is both part of the main class and subclass having received multiple unsolicited text messages from DSW or its representatives while being on the National Do Not Call Registry.

Sending spam text messages may violate federal law

According to Twilio.com, the TCPA strongly curtails the use of ATDS. ATDS is automated equipment which is capable of storing phone numbers entered into it or randomly generating numbers sequentially. It is indicated in both the lawsuit and the Twilio.com article that use of ATDS is expressly prohibited under the TCPA to use in connection with a cellular phone number without the consumer’s permission. If consent is given, it can be taken back at any time by the individual.

In 2003, the Federal Communications Commission established the National Do Not Call Registry which allowed consumers to register both landlines and cell phone numbers as off limits to telemarketers and spam text. Calling or texting numbers on this list which is specifically off-limits may constitute willful breaking of the federal law. This willfulness, if proven, may allow statutory damages to be multiplied.

The DSW spam text messages TCPA class action lawsuit is Austin v. Designer Brands Inc., Case No.  2:19-cv-08187 in the U.S. District Court for the Central District of California.

Read About More Class Action Lawsuits & Class Action Settlements:

• Albertsons class action claims retailer sends unwanted text messages
• FCC ruling makes AI-generated robocalls illegal
• Companies face TCPA class action lawsuits over spam texts, faxes
• Bath Fitter class action alleges company made unsolicited telemarketing phone calls