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11/18/2015

Popeye's Accused of SMS Spam

 

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How often do you read through an entire opt-in agreement? You know, those fine print legal documents that detail subscriptions to emails, newsletters, or push notifications? Well, Jacob Meier reads them—this was made evident by a class action lawsuit he filled against Popeye’s Louisiana Kitchen on Nov. 2 in the U.S. District Court for the Central District of California. 

So, what’s the lawsuit about? Fortunately, this isn’t a case of bizarre findings inside fried chicken. Instead, Meier alleges that Popeye’s wrongfully spammed his cell phone using SMS messages to advertise food deals. The complaint states that Meier was expecting to receive no more than two text messages a month from the fast food chain. When the third text message came through, Meier said Popeye’s violated the opt-in agreement and the Telephone Consumer Protection Act (TCPA), a law passed in 1991. 

Meier is seeking a jury trial with the hope of securing statutory damages, an injunction on any unlawful activities by the defendant, attorney fees, and anything else he can get from a sympathetic court.

The plaintiff’s willing cooperation to opt-in to the “love that chicken” mobile program, means this case is mildly offensive at worst and a programming error at best. Certainly this case isn’t as serious as Liebeck v. McDonald’s Restaurants, more popularly known as the hot coffee lawsuit, or the chili finger hoax at Wendy’s, circa 2005. Nobody bit into a dead mouse, and for that we should all be grateful. But what this case does bring up is elastic use of the word ‘spam’. 

 

What Is Spam?

For example, is three text messages a month really considered spamming? Or is spamming defined by an opt-in agreement that’s been laid out? Either way, retail stores across the nation should pay attention to the court ruling on this matter and tighten up their opt-in agreements to make sure they err on the side of caution when sending out updates, newsletters, or special advertisements. 

If Popeye’s hadn’t made any claims in the opt-in agreements about the specific number of text messages it wished to share each month, would the plaintiff still have a case? Right now, the working definition of spamming is “use of electronic messaging systems to send unsolicited messages.” Does an opt-in agreement change the nature of this definition? If a user wants to ‘love that chicken,’ doesn’t that imply some form of consent? 

I guess we will all have to stay tuned to find out. 

In the meantime, consumers should be wary of opt-in agreements that make promises to limit push notifications, especially if it’s a product or service you’re not ‘in love with.’ Mobile marketing is still somewhat uncharted legal territory as far as the user’s protection goes, and if you’re not willing to deal with excessive notifications, better safe than sorry. 

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"Popeye's Accused of SMS Spam"
ha
great article title!

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