Med Spa Del Mar (Naples, FL) is the latest company to be hit with a class action lawsuit for violating Telephone Consumer Protection Act (TCPA) laws. Lead plaintiff Carol N. Mazzariol claims that Medspa Del Mar invaded her and other consumers’ privacy with a string of impersonal and generic messages sent without their express written consent. The robo-texts constituted illegal telemarketing because they encouraged the sale of the spa’s products and procedures, Mazzariol claims.
Created in 1991 to prevent motor companies and pre-recorded marketing calls from flooding landlines, TCPA violations are now the second most frequent federal lawsuit after employment law claims. Today, the TCPA focuses mainly takes on text message marketing. The statutory damages for violating the TCPA is $500 per text or actual damages. This can increase to $1,500 per text for having knowledge of these violations or willfully sending them. Mazzariol's suit is seeking up to $1,500 in statutory damages for each alleged violation of the TCPA, exceeding the $5 million threshold for federal court jurisdiction under the Class Action Fairness Act.
A settlement of $5 million is not unheard of. In a recent case against Walgreens, Kolinek v. Walgreens, a consumer went to pick up a prescription at Walgreens where the pharmacist claimed that the consumer’s mobile number would only be used to verify his identity for future refills. His cell phone number in fact not used to verify his identity, but instead remind him about refills. The consumer then, filed a TCPA class action lawsuit that Walgreens settled for $11 million.
To avoid situations like this, companies must receive prior written consent from each consumer receiving a text. There is also a list of items that must be included with the consumer’s consent to have it considered TCPA compliant, including that consumers must not pay for the text messages.
A trial by jury is expected to hear on this matter in the near future. Click here for the full case docket.