Leading Retailers Want SCOTUS to Protect Text Communications

Mobile communications are ubiquitous in modern daily life. Text messages from our kids’ schools, reminders for appointments, shipping notifications on purchases, and automatic texts from our pharmacy about prescriptions are commonplace—and convenient.

However, liability for sending these texts is skyrocketing in situations where retailers and others have no way to know that a phone number in their database that was once owned by a consumer who legitimately consented to receiving texts was reassigned by the cell phone company to someone new. A recent Ninth Circuit Court of Appeals decision aids professional plaintiffs and their accomplices who are using this information gap to extort millions of dollars from businesses that are sending text messages in good faith.

The Retail Litigation Center filed an amicus brief asking the U.S. Supreme Court to reconsider the Ninth Circuit’s decision on the scope of Telephone Consumer Protection Act (TCPA) liability faced by retailers and others who send texts. The case before the Court is Facebook, Inc. v. Duguid.

The RLC’s amicus brief provides examples of ways in which consumers have come to rely on text messages to alert them to everything from school snow days to fraudulent bank account activity. The amicus brief also reveals some of the extreme actions professional plaintiffs and their accomplices take in order to exploit the information gap on reassigned cell phone numbers, such as an individual who purchased dozens of cell phones from targeted geographical areas and carried them with her everywhere – even on vacations – for the sole purpose of attracting calls and texts to convert into lucrative TCPA claims. Plaintiffs’ lawyers also profit from these cases taking in millions of dollars while the average recovery for TCPA class action members was found to be $4.12 in one study cited in the brief.

“The US Supreme Court needs to weigh in on this case and curb counterproductive TCPA litigation,” said Deborah White, President of the Retail Litigation Center. “We need the Court to text STOP to these professional plaintiffs and their trial attorneys. Forcing retailers to choose between holding back on communications valued by consumers or exposing themselves to rampant TCPA litigation is untenable for retailers and will end up depriving consumers of communications that make their lives easier.”

Directed by the chief legal officers of the country's leading retail companies, the Retail Litigation Center (RLC) is the only organization dedicated to advocating for the industry's top priorities in the federal and state judiciary. The RLC also works with leading law firms and retail corporate counsel to develop forward-thinking strategies to combat meritless mass action litigation. Founded by the Retail Industry Leaders Association (RILA) in 2010 as an independent organization, the RLC is a 501(c)(6) membership association open to all retailers and select law firms.

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