Vicarious Liability For Spam Texts.

Spam is irritating, whether it comes by e-mail or text message, even though it’s actually pretty easy just to delete it. A group of customers of Heartland Automotive Services, a franchisee which operated Jiffy Lube service stations, found the spam texts they received sufficiently annoying that they initiated class proceedings:

In re: Jiffy Lube Int’l Inc. (USDC SD CA, March 9, 2012) (Case No. 11-md-2261-JM-JMA), the messages at issue, which offered discounts on Jiffy Lube services, were actually sent by TextMarks, a company which had allegedly been hired by Heartland to store phone numbers and send out mass texts.

The plaintiffs claimed this violated federal law against the use of automated dialing technology. In declining to dismiss their claims, the California district court thought there was no reason in principle why Heartland couldn’t be vicariously liable for robo-calling, even though this was not expressly provided for in the legislation. Heartland also argued that its customers had consented to receiving text messages by providing their phone numbers when making payment, and while the court didn’t rule one way or another on the point it suggested that consent probably required an express statement by the customer that promotional texts would be OK.

Adapted from, Neil Guthrie, The California State Bar, Lexology, June 12, 2012.