Harris Hoffberg
In a recently filed class action lawsuit, the plaintiffs allege Uber Technologies, Inc. (“Uber”) sent autodialed text messages to individuals after those individuals opted out of the messages by texting back “stop,” which, the plaintiffs allege, would be a violation of the Telephone Consumer Protection Act (“TCPA”). The class representative is an Uber driver applicant who allegedly provided his telephone number during the application process, which he never completed. Uber then purportedly began sending him text messages inquiring whether he needs help finishing his application. The plaintiff allegedly replied back “stop” on numerous occasions and Uber’s automated system ostensibly responded to these “stop” requests with a confirmation text stating “SMS from Uber is now disable. To re-enable, reply START.” But it apparently did not stop there. After continuously receiving text messages from Uber, the plaintiff allegedly deleted his Uber rider account, which was confirmed (you guessed it!) with a text message from Uber.
The TCPA, and the FCC’s regulations under the TCPA, prohibit the use of an “automatic telephone dialing system” to call certain telephone numbers without the prior express consent, or in the case of sales calls, prior express written consent, of the recipient. Since 2003, the FCC has consistently interpreted text messages to be “calls” subject to the TCPA. The plaintiff proffers evidence that Uber was using an automated system due to the similar content and structure of the messages, the regularity of the messages, and the inability to stop the messages. The plaintiff is not only seeking $500 for each non-confirmation, post-“stop” text message sent to his cell phone, but also treble damages for these text messages, which, plaintiff alleges, were made willfully or knowingly in violation of the TCPA.
Uber is far from the only company that has been hailed into court by the class action plaintiff’s bar for alleged TCPA violations. Fortunately for Uber, the recent Supreme Court decision, Spokeo Inc. v. Robins, although brought under the Fair Credit Reporting Act, set forth a new hurdle for plaintiffs to recover statutory damages under Federal law based on standing requirements. Specifically, the court ruled that plaintiffs must show concrete injury in order to recover statutory damages. This significantly impacts cases under the TCPA, where statutory damages range from $500 to $1500 per violation, despite generally not causing the plaintiff any harm.
Due to the high monetary stakes involved, defendants often chose to settle TCPA lawsuits to avoid crippling litigation. Now, however, a defendant may raise this standing defense at the onset of the case. The plaintiffs here may have anticipated such a defense, as they list a multitude of alleged injuries suffered: device storage, data usage, plan usage, lost time tending to and responding to unsolicited texts, and invasion of privacy. While this “kitchen sink” method of showing harm may appear to be enough on its face, a closer look by a judge may find it unconvincing. Text messages are often charged as a flat rate and many people send thousands of texts a month, so it is debatable whether adding several more text messages caused injury. Uber has not yet filed its answer, but it will be interesting to unwrap how Uber rebukes the plaintiff’s complaint in light of the Spokeo decision, and whether they will succeed in cancelling this courtroom ride, before it gets started.