Woman Sues American Eagle Outfitters Over Ads in Text Messages

A woman has filed a lawsuit alleging American Eagle Outfitters violated the Telephone Consumer Protection Act (TCPA) by sending her ads in text messages.

Plaintiff Talisha Aparicio said that, despite the fact she never gave permission for the clothing retailer to contact her through an automated dialing system, she received an automated text message to her cell phone on Sept. 3, 2019.

The message was sent from a short code, which is a five-digit code that allows companies to send SMS text messages in bulk.

The text message said, “Aerie: Oh yea! 2 more days to shop 40% off our collection + 50% off all bras:” followed by a hyperlink to the American Eagle’s “Aerie” collection sale.

Aparicio alleges she had received two other automated marketing texts on Aug. 29 and Aug. 22.

When she replied “stop” to the text message in September, Aparicio says she immediately received an automatic reply that she would no longer receive messages. Because the auto-reply transmitted back to her cell phone without a human intervening is further evidence that an automated dialing system was used, says the complaint.

TCPA Covers Ads in Text Messages

The Telephone Consumer Protection Act (TCPA) was enacted by U.S. Congress in 1991 to restrict telemarketing calls, the use of automatic phone dialers, and the use of artificial or prerecorded voices.

In 2003, the Federal Communications Commission worked with the Federal Trade Commission to establish a National Do Not Call Registry, expanding protection for consumers who do not wish to be contacted by telemarketers.

The FCC revised the TCPA in 2012 to ensure that telemarketers must receive prior express written consent from a consumer before robocalling the consumer and must provide an opt-out feature during each robocall that allows the consumer to tell the business to stop calling. In addition, telemarketing efforts can no longer claim an established business relationship with a consumer as an excuse to robocall them.

TCPA also covers SMS/text messages, which means prior express written consent must be received from an individual before a text message may be legally sent to their cell phone. Statutory damages range from $500 to $1,500 per violation.

TCPA also says that just because a consumer provides a phone number to a business does not give the business permission to contact the consumer for telemarketing purposes.

In Aparicio’s case, she alleges “she wasted at least five seconds” reviewing the unsolicited ads in text messages. Upon being aggravated, she allegedly spent a minimum of 15 minutes looking through hard copy documents and online records to see if she had provided American Eagle Outfitters with permission to send her telemarketing messages. She found nothing to indicate she had ever provided such express written permission to the clothing retailer.

She alleges she was further aggravated by receiving yet another text message after she sent STOP, which said she would no longer receive the text messages.

The Ads in Text Messages Lawsuit is Talisha Aparicio v. American Eagle Outfitters, Inc., Case No. 0:19-cv-62390-RKA in the U.S. District Court for the Southern District of Florida.

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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.