Last month, a putative class action Complaint was filed against
Dave & Buster’s (“Defendant”) for allegedly
failing to observe proper telemarketing hours. In Laureta v.
Dave & Buster’s Inc., Plaintiff claims that he
received three text messages between 3:00 and 6:00 a.m. If
Plaintiff’s allegations are proven true, Defendant may have
violated the Telephone Consumer
Protection Act (“TCPA”), exposing it to a potentially
significant monetary judgment.
As our readers are
aware, the TCPA is a federal statute that
restricts certain types of telemarketing communications. Every day,
numerous TCPA complaints alleging violation of the TCPA and its
state analogs are filed across the country. In the wake of Facebook v.
Duguid, TCPA plaintiffs have increasingly turned to other
portions of the statute when bringing their litigation claims.
Failure to observe certain telemarketing hours is not as commonly
alleged, but Laureta is a stark reminder that businesses
must continually ensure compliance with every portion of the TCPA
and its implementing regulations.
The Facts Alleged in Plaintiff’s Telemarketing Hours
Lawsuit
Defendant operates a chain of family-friendly sports bars
offering an extensive food menu and arcade games. In his lawsuit,
Plaintiff states that he received text message marketing from
Defendant at 3:10 a.m., 3:46 a.m., and 5:52 a.m. on his cellular
phone. Plaintiff claims that he never authorized Defendant to send
him telephone solicitations before 8 a.m. or after 9 p.m. Plaintiff
further alleges that his cellular phone is utilized solely for
personal purposes and that his telephone number should, therefore,
be treated as a residential phone line under the law.
Applying the Relevant Statutory Provisions to Plaintiff’s
Claims
The TCPA’s applicable implementing regulations, found at 47
C.F.R. § 64.1200(c)(1), provide, in pertinent part: “[n]o
person or entity shall initiate any telephone solicitation” to
“[a]ny residential telephone subscriber before the hour of 8
a.m. or after 9 p.m. (local time at the called party’s
location).” 47 C.F.R. § 64.1200(c) further states that
these restrictions are “applicable to any person or entity
making telephone solicitations or telemarketing calls to wireless
telephone numbers.”
The Laureta Complaint details that any person who has
received more than one telephone solicitation within a 12-month
period from, or on behalf of, the same entity outside the
statute’s proscribed hours has a private right of action.
Because Defendant appears to have sent Plaintiff three marketing
text messages before 8 a.m. local time, Plaintiff may have a valid
TCPA claim. Note that Defendant may be liable for $500, or $1500 if
its conduct is proven willful, per text message sent in violation
of the TCPA, on a class wide basis.
Why is Laureta Important to
Your Business?
Telemarketing hours violations may not be as familiar to some as
allegations of prerecorded voice call or National Do-Not-Call
Registry violations, but make no mistake, these claims may result
in significant cost. It is important to point out that we have seen
these “Quiet Hours”
claims filed at an unprecedented rate over the past couple of
months. Businesses should also be aware of the fact that many
state-specific “Mini-TCPA’s” contain their own
acceptable hours for telemarketing. With certain exceptions, best
practices dictate that telemarketing communications should only be
delivered between 9 a.m. and 8 p.m., Monday to Friday
(excluding certain holidays), recipient local time.
Similar Blog Posts:
New TCPA Arbitration
Decision Provides Roadmap To Enforcement
Did This Fresh Subway
TCPA Litigation Decision Refresh A New Type Of Claim?
Ringless Voicemails Require TCPA Consent
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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