In what I believe to be a first-in-the-nation order in a case of this type, the Court in Yates v. Checkers Drive-In Restaurants, Inc., Case No. 17 C 9219, 2020 U.S. Dist. LEXIS 205241 (N.D. Ill. November 3, 2020) has ordered nearly two million text messages to be sent to class members in a case alleging that the burger joint violated the TCPA by, wait for it, sending unwanted text messages.
Yesterday I brought you a story about how a mind-melting website and a 30 year old faxtel system resulted in some cutting-edge TCPA law–and it became our best read article ever thanks to some hackers.
Today’s story is even weirder.
Here’s the tale.
A few years back a guy drives through a Checker’s burger joint in the Chicago area hoping to buy a burger. There he encounters a sign on the window that offers him a free burger if he sends a text message to a shortcode.
This sounds pretty good to the guy—I mean its a free burger, come on— so he shoots a text to the shortcode.
He is dismayed to learn, however, that in order to get his free burger he has to supply his zip code and agree to some terms and conditions about joining a text promotional club.
Presumably still hungry—maybe even hungrier from the exertion—he provides his zip code, gets the free burger coupon, eats the burger, and then sues Checker’s on behalf of himself and nearly two million other people who received the same text message for violating the TCPA.
And under the TCPA’s massive statutory damages, Checker’s was looking at about a billion dollars in exposure. That’s not hyperbole. Literally a billion dollars in exposure. Because of a burger coupon text campaign.
It gets better.
The Court found in an earlier ruling that Checker’s text promoting its text club violated the TCPA because Plaintiff had only consented to receive texts about a burger—not texts about the strings attached to the burger. (I explained in an earlier post why the “no such thing as a free lunch” defense should have worked here but didn’t.) So Checker’s was in a lot of trouble in the lawsuit.
And so it did what you’d expect it to do—agree to pay millions of dollars to settle the case with class members who it tried to give free food to.
God bless the TCPA.
The parties identified 1.9MM class members. And—as you’d expect—Checker’s had a bunch of phone numbers and zip codes for these folks but not a whole lot of names or addresses. Undeterred the Court approved an email notice plan and the administrator assigned to the settlement went about trying to perform reverse lookups on the phone numbers to try to find class members.
It didn’t work.
After notice went out, a grand total of 7,000 class members responded—meaning that over 99% of class members were set to get zero under the settlement.
The parties to the lawsuit apparently didn’t see any problem with this abysmal claims rate and walked into court to ask for final approval of the settlement anyway.
The Court was not amused. Determining that the notice is plainly not sufficient—why would only 7k people cash in their free money ticket?— the Court determined a further notice plan is needed to let people know about this awesome settlement.
And that gets us to our punchline. How do you notify a bunch of people who received purportedly illegal text messages about the settlement in the text message class action? Why via text message, of course.
And that’s about where we came in. The Court has now approved a notice plan where nearly 2,000,0000 new text messages get sent to the very class members who are thought to have been harmed by a text message to begin with.
Only in TCPAWorld folks.