A while back I pointed out the irony of a text message TCPA class action ending with the parties sending more text messages to the class members to notify them about the lawsuit regarding text messages. It just seemed strange.
Well in James v. Boyd Gaming Corp., Case No. 19-2260-DDC-JPO, 2021 U.S. Dist. LEXIS 38444 (D. Ks. March 2, 2021) a Defendant in an FLSA case was just ordered to produce cell phone numbers to the Plaintiff for the express purpose of sending notice to the class via text message. The Court noted the concerns animating the TCPA and the desire to keep contact rates low. Nonetheless, it found that text notice was the best way to assure class members were informed of the case.
Here’s the key language
the court allows plaintiff to use this information to send notice via text message. Just as individuals may move their residences- thereby meriting use of email notice-they also may throw out their landline telephones for related reasons. It’s obvious that Americans are cutting cords across the board with increasing frequency-from telephones to televisions-and the court won’t ground its decisions in ruling that don’t keep pace with the society they control. But, the court’s permission isn’t boundless. Plaintiff is required to limit the frequency of this form of notice to ensure that opt-in plaintiffs aren’t overwhelmed and annoyed. And, plaintiff can offset these limitations by virtue of the ample opportunities the court permits for providing notice.