Hooters Can't Shake Robotext Claims, Plaintiffs Say

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By Daniel R. Stoller

July 29 — A putative consumer class said July 29 that Hooters of America LLC should be forced to respond to their claims that the restaurant chain sent them commercial texts without consent ( Etzel v. Hooters of Am., LLC, N.D. Ga. , No. 15-cv-01055, response to motion to dismiss, 7/29/16 ).

The case highlights the case-by-case approach federal trial courts may take with the U.S. Supreme Court's Spokeo v. Robins, 136 S. Ct. 1540 (2016), concrete injury standard (15 PVLR 1062, 5/23/16). Depending on the language of the underlying statute at issue and the circuit in which the court is located, similar facts may lead to different outcomes.

The plaintiffs asked the U.S. District Court for the Northern District of Georgia to deny the company's motion to dismiss. Hooters had argued that the Telephone Consumer Protection Act (TCPA) claims be tossed because the plaintiffs' failed to allege “concrete and particularized harm independent of the alleged statutory violations.”

The plaintiffs said that they have standing to pursue their claims because a recent U.S. Court of Appeals for the Eleventh Circuit decision held that “a violation of the TCPA is an injury-in-fact.” The appeals court there held that “Congress, may by statute, transform a previously non-concrete injury into one that is concrete and therefore sufficient to confer standing.”

According to the original complaint filed in April 2015, Hooters contracted with a third-party advertising company, SilverPop Systems Inc., to send marketing texts to “a list of telephone numbers” provided by Hooters. The plaintiffs alleged that after telling Hooters that they wanted to opt-out of receiving text messages, the international sports bar chain continued to send marketing texts without consent.

The TCPA, 47 U.S.C. §227, prohibits the use of automated telephone dialing systems without the prior express consent of a consumer to receive unsolicited calls or text messages on a mobile phone.

Counsel for the putative class and Hooters didn't immediately respond to Bloomberg BNA's request for comments.

W. Pitts Carr and Associates PC, David E. Ghattas PC and Weinberg Wheeler Hudgins Gunn & Dial LLC represent the named plaintiff. Snell & Wilmer LLP, Taylor English Duma LLP and Elarbee Thompson Sapp & Wilson represent Hooters.

To contact the reporter on this story: Daniel R. Stoller in Washington at dstoller@bna.com

To contact the editors responsible for this story: Donald G. Aplin at daplin@bna.com ; Jimmy H. Koo at jkoo@bna.com

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