While TCPA filings are slowing down a bit—like everything else lately—the rules governing telemarketing text messages have not softened an ounce. Mass blast marketing messages remain subject to the TCPA—at least where an ATDS is used—and such messages may not be sent without express written consent.
Well, People for the Ethical Treatment of Animals (PETA) has allegedly transgressed these rules and in a rather large way, that according to a new complaint filed yesterday in the Southern District California. According to the Complaint—found here PETA Complaint—PETA teamed up with Beyond Meat to pitch the plant-based meat replacement company’s wares via mass text messages. The texts at issue in the case advertise the availability of Beyond Meat at On the Border locations, although OtB is not—as of yet anyway—a Defendant in the case.
Plaintiff, a San Diego, California resident, claims to have no business dealings with Beyond Meat and did not provide express written consent to receive the promotional text messages. Interestingly, the Plaintiff admits PETA would not normally be subject to the FCC’s enhanced written consent rules but “it is in this case because it was acting as a conduit for Defendant Beyond Meat, a for profit corporation, and because it was engaged in marketing.”
The Complaint alleges that PETA used a system that can dial randomly or sequentially to place the calls, and also alleges the system can text automatically from a list of stored numbers—meaning that the texts were sent via an ATDS for TCPA purposes under Marks.
Notably, although PETA sent the text at issue in the case, the class is not limited to just those texts. Rather the class is defined more broadly to include any texts sent advertising Beyond Meat’s product:
All persons within the United States who, within the four years prior to the filing of this Complaint, were sent a text message using the same type of equipment used to text message Plaintiff, promoting Defendant Beyond Meat’s goods, from Defendants or anyone on Defendants’ behalf, to said person’s cellular telephone number.
Plaintiff alleges that there are several thousand class members “if not more” meaning that PETA is facing millions in potential exposure in this case. (Each violation of the TCPA ATDS provision carries a minimum $500.00 penalty.)
It remains to be seen whether the allegations of the complaint have any merit. More to come.
Unrelated, Italy now has more COVID-19 deaths than China. Eesh.