Last month, a Florida district court granted preliminary approval of a $3 million class action settlement brought on behalf of recipients of unwanted Jenny Craig marketing text messages. The lead plaintiff, Zoey Bloom, alleges in her complaint that Jenny Craig used an automatic telephone dialing system to transmit two text messages that advertised Jenny Craig’s weight loss services without her prior express written consent. One such message Bloom received was: “”Hi Zoey, It’s Liz @ Jenny Craig again. Don’t want you to miss our best offer ever! Free 1 yr prog. + $17 off wkly menu for 12 wks. Interested?” She sought to join all persons within the United States who received similar text message advertisements from Jenny Craig without prior written consent since May 2014—about 628,610 individuals.
The settlement agreement includes an unopposed request for class counsel’s attorneys’ fees of up to 30% of the settlement fund and the legal costs to bring the suit. The speedy settlement came after “extensive arm’s-length negotiations, including a full-day mediation session, and subsequent negotiations lasting over one week,” and “provides relief for settlement class members where their recovery, if any, would otherwise be uncertain, especially given Jenny Craig’s ability and willingness to continue its vigorous defense of the case,” according to Bloom’s unopposed motion for preliminary approval of the settlement. The final approval hearing to determine the fairness and adequacy of the settlement is set for February 25, 2019.
Takeaway: The TCPA prohibits making calls or sending messages using any automatic telephone dialing system or “robodialing” to a number assigned to a cellular phone service, other than those made with prior express consent or for emergency purposes. Violations carry a minimum penalty of $500 per call or message. Advertisers should ensure any campaign involving robodialed calls, voice messages, or text messages are within TCPA standards.