CHICAGO—Local businessman David Izsak has sued two website companies, Smoochy Brands LLC and CM Productions LLC, alleging that he received an SMS (Short Message Services) text message to his cellphone inviting him to click a link contained therein to invite "Lily-F" to have a cup of coffee. Trouble is, clicking the link took Izsak to the sexually oriented "Well Hello" website, operated by Smoochy, where he was asked to fill out a form and search for "matches" on the site based on his "sexual preferences."
In the lawsuit, which he hopes to expand into a class action suit, Izsak argues that since he had never had any previous contact with Smoochy, it should not be sending him unwanted and unauthorized text messages—but that's not all. Upon trying to exit the Well Hello site, Izsak claims that he was redirected to other sexually oriented websites owned by both Smoochy and CM Productions, many of which bear the "Badoink" trademark, and where both Smoochy and CM Productions advertise other paid services.
"If the recipient tries to click 'back' on his Internet browser, he is not directed to the last viewed page," Izsak's complaint states. "Instead, he is directed to a series of websites owned and operated by Defendants. These websites advertise Defendants’ products or membership services. Accordingly, Defendants designed a text message campaign that would advertise their various websites."
While it's unclear how difficult Izsak found it to exit from the sexually oriented sites, depending on the level of difficulty, the site owners could be sued for "mousetrapping," which the Federal Trade Commission considers to be a violation of Section 5 of the FTC Act, and has previously brought lawsuits against "mousetrappers" for engaging in a "deceptive and unfair competitive practice."
In the complaint, Izsak suggests that Smoochy and CM are using "equipment that had the capacity to store or produce telephone numbers to be called using a random or sequential number generator, and to dial such numbers," and states that "Plaintiff never consented to in writing, requested, or otherwise desired or permitted Defendants to send or transmit text messages to his wireless phone." Elsewhere in the complaint, Izsak notes that at least some customers are charged for text messages sent to their phones.
Izsak is suing under the Telephone Consumer Protection Act of 1991 (TCPA), a law which restricts telephone solicitations from, among others, telemarketers, and also restricts the use of automated telephone dialing equipment such as that which Izsak charges was used in this case.
"By sending the unsolicited text messages to Plaintiff and the Class, Defendants have violated 47 U.S.C. § 227(b)(1)(A)(iii)," the complaint charges. "As a result of Defendants' unlawful conduct, the Class members suffered actual damages in the form of monies paid to receive the unsolicited text messages on their wireless phones and under section 227(b)(3)(B) are each entitled to, inter alia, a minimum of $500.00 in damages for each such violation of the TCPA."
The complaint also notes that if the court determines that Smoochy and CM sent the texts wilfully or knowingly, the law allows the court to award Izsak and the class triple the amount of statutory damages, and argues that the text messages amount to a "conversion" of the phone owners' data to the Defendants' own usage.
"This loss of use constitutes an asset of economic value paid for by Plaintiff and the other Class members when they acquired their wireless telephones and subscribed for wireless telephone service," the complaint states, adding later, "By sending texts (or directing texts to be sent on their behalf), Defendants appropriated to their own use the data usage and wireless telephones used to receive the texts in such a manner as to make them unusable or decrease their performance. Such appropriation was wrongful and without authorization ... Plaintiff and the other Class members were deprived of the data usage and performance of their wireless telephones, which could no longer be used for any other purpose."
"I read through the complaint, and would note that these TCPA claims carry serious financial penalties, and are usually easier to establish than CAN SPAM cases, due to the explicit prior consent requirements for promotional text messages," noted First Amendment attorney Lawrence G. Walters. "Using a random number dialer, if true, is a clear violation of the TCPA. There have been other TCPA class actions, and the consequences can be severe if a violation is established."
What Izsak and (if granted) the others in his "class" are looking for, aside from the actual and statutory damages previously mentioned, is for Smoochy and CM to "cease all text message activities initiated without prior express written consent, and otherwise protecting the interests of the Class"—and, of course, pay "reasonable attorneys' fees and costs."
The full complaint may be read here. Attachments to the complaint as filed included screen grabs of the various websites to which Izsak was sent, with all the "naughty bits" blacked out, as depicted above.
