iQueenie here. Back from Florida from a long trip with the Czar. With me I brought back a new Florida TCPA class action suit to remind TCPAWorld that the TCPA applies to any text that solicits the purchase of goods or services — including margaritas and the like.
In the new class action, Plaintiff Racheal Paul alleges Margaritaville sent her telemarketing text messages without consent to those on the DNC list and to consumers who asked Margaritaville to stop texting them. She registered her number on April 22, 2014.
The Complaint alleges Plaintiff initially received 2 unsolicited text messages form Margaritaville at 8:30 A.M. on January 29, 2023 (not sure what consumers Margaritaville expects to engage with at 8:30 A.M. but anyhoo). Despite Plaintiff’s request to “stop”, she received a 3rd unsolicited text in which she received the following responses:
Apparently Margaritaville thinks a consumer’s “STOP” request is a consumer’s request for an upgraded rewards program. Assuming these facts are true, I just don’t understand how these text message campaigns got through. Note to folks who take DNC requests seriously – you might also want to add “report” to your list of revocation words and phrases.
Plaintiff alleges she has never been wasted – I mean done business with Margaritaville and has never provided her cell phone number to it. And on this basis, she seeks to certify the following two classes:
Do Not Call Registry Class: All persons in the United States who from four
years prior to the filing of this action through trial (1) Defendant, or an agent
calling on behalf of the Defendant, called more than one time on their
residential number, (2) within any 12-month period, (3) where the person’s
telephone number had been listed on the National Do Not Call Registry for at
least thirty days, (4) for substantially the same reason that Defendant called
Plaintiff.
Internal Do Not Call Class: All persons in the United States who from four
years prior to the filing of this action through trial (1) Defendant, or an agent
calling on behalf of the Defendant, called more than one time on their
residential number, (2) within any 12-month period, (3) for substantially the
same reason that Defendant called Plaintiff, (4) including at least once after
the person requested that Defendant or its agent to stop calling.
Obviously the DNC class should definitely be stricken as overly broad as it is not limited to persons – like Plaintiff – who alleges she did not consent to the texts. Every individual who may have wanted to get wasted in Margaritaville is included in this class. Interestingly, Plaintiff alleges Defendant Margaritaville owns the Margaritaville Syracuse location yet names the national entity – so these text messages appear to be sent based on a franchisee campaign (as opposed to a national campaign) but the national entity was named in the suit. Vicarious liability arguments anyone?
