Haagen-Dazs Tries to Dodge Lawsuit over Unwanted Advertising Text Message

Haagen-Dazs is seeking a way out of a TCPA class action lawsuit accusing the company of sending its customers an unwanted advertising text message.

Plaintiff Melanie S. claims in her proposed class action lawsuit that the text violated the Telephone Consumer Protection Act (TCPA) by sending a consumer an advertising text message without seeking and obtaining written permission in advance of the action. The content of the purported message was “Thank you for joining Haagen-Dazs Rewards! Download our app here.” She desires injunctive relief from all named defendants in this action and seeks damages of at least $500 per received text.

Now, this month, the defendants are asking the court to issue summary judgment in the company’s favor. Haagen-Dazs argues there is no basis for viewing the text in question as an advertisement, as there was no attempt to sell the plaintiff anything. They claim the message sent was initiated by her by way of a positive response to an inquiry from a sales clerk regarding a rewards program.

In February, Melanie asked the court to certify the proposed Class. Two months later, Haagen-Dazs pointed out to the court the fact that the plaintiff had not successfully uncovered any other complainants to justify the need for the group action. The court still hasn’t issued a decision on the motion for class certification.

What is the TCPA?

The TCPA was passed in 1991 because of the alarming rise in annoying and harassing telemarketing calls, fax and text message spam which citizens were being subjected to on a daily basis. It was an amendment to the Communications Act of 1934 and stipulated strict rules for companies which lacked specific written consent by consumers with regard to this type of contact.

As part of the TCPA, businesses like restaurants and clothing retailers were forced to adhere to new rules limiting the employment of automatic telephone dialing systems (ATDS) and pre-recordings. ATDS were new equipment with the capacity of storing entered phone numbers or sequentially predicting and calling them.

While initially the TCPA required that each company established a means to organize and maintain their own database of customers that had indicated an express desire not to be contacted, 12 years later, the Federal Trade Commission (FTC) established the National Do Not Call Registry which allowed consumers to register their numbers on a national database.

How is Text Message Spam Related?

According to the FTC, text message spam—unwanted and unsolicited contact—is a potential “triple threat.” The first threat is that the message may lure the consumer with offers of free or cheaper stuff, or even mortgages, credit cards, and personal loans in order to release personal identifiable information (PII) like social security numbers and income levels.

The second threat is that—even if you don’t offer the information desired in these phishing scams, clicking on them can introduce data mining malware which can gather and then sell the information to third parties. Finally, whether desired or not, text messages can cost you to receive on your cell phone. They can also use up memory and slow down the functionality of a device which you pay for the right to own and use.

The Advertising Text Message Lawsuit is Case No. Case 5:17-cv-03504-NC in the U.S. District Court for the Northern District of California

Join a Free Text Message Coupon Class Action Lawsuit Investigation

If you have received coupons or sales advertisements in a text message from a restaurant or clothing retailer and your phone number is registered with the National Do Not Call registry, you may be entitled to compensation.

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This article is not legal advice. It is presented 
for informational purposes only.