Hooters Doesn’t Escape Federal Class Robotext Suit

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By Daniel R. Stoller

Nov. 16 — Hooters of America LLC will have to face putative class claims that consumers didn’t consent to the restaurant chain sending them commercial texts ( Etzel v. Hooters of Am., LLC , N.D. Ga., No. 15-cv-01055, dismissal denied 11/15/16 ).

The case highlights the different approach courts take on applying the U.S. Supreme Court’s decision in Robins v. Spokeo, Inc., 136 S. Ct. 1540 (2016), which held that a plaintiff must show that the alleged injury was both “concrete and particularized” and can’t rely on a procedural violation to allege injury in fact . Depending on the language of the underlying statute at issue and prior case law, similar facts may lead to different outcomes.

An alleged violation of the Telephone Consumer Protection Act (TCPA) is enough to file suit in federal court, Judge Leigh Martin May of the U.S. District Court for the Northern District of Georgia said in the opinion made public Nov. 16. The court relied on a recent U.S. Court of Appeals for the Eleventh Circuit opinion which held that Congress specifically intended to create “injury where the statute was violated.”

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.

For example, an injury is created by unwanted commercial text messages because it may incur charges on a consumer’s phone bill, deplete mobile phone battery life and invade consumers’ privacy, among other tangible harms.

Relying on Spokeo, the court said that “sending a single text message in violation of the TCPA constitutes an injury-in-fact.” Because the plaintiffs alleged a legally recognized harm, Hooters’ motion should be dismissed, the court said.

The case arises out of consumer claims that 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.

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 LLP represent Hooters.

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

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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