Pietzak et al v. Microsoft Corporation & HelloWorld, Inc.

 

Area: Class Action & Consumer Protection

Court: Central District of California Federal Court

 

In an effort to advertise products and services for Defendant's Microsoft Store and Xbox products and services, Microsoft and its marketing partner, HelloWorld posted solicitations on popular social media websites, such as Facebook, Twitter, Instagram, and YouTube requesting consumers send a text message to SMS short code 29502 with various keywords.  The social media posts include messages that lead consumers to believe that sending a text message to Defendants will give them a chance to win prizes (such as an Xbox) or receive a discount coupon. 

 Selected Case Documents 

 

Defendants, however, do not tell consumers that by sending a text message with the keyword advertised in a social media post, the consumer’s mobile phone number will be stored in a database and enrolled in a marketing program wherein Defendants will repeatedly send text message advertisements. 

 

Plaintiffs and class members in this case never provided their express written consent to receive text message advertisements from Defendants, and Defendants never provided any disclosure whatsoever that Plaintiffs and class members did not need to consent to receiving text message advertisements to purchase any product or service.  The Telephone Consumer Protection Act (“TCPA”) requires both express prior written consent, and that the written agreement contain a statement disclosing that consent is not required as a condition to purchase any product or service. 

Congress found that consumers consider these kinds of calls, “regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy”; that businesses also complain that these kinds of calls “are a nuisance, are an invasion of privacy, and interfere with interstate commerce”; and that banning such calls, except when made for an emergency purpose or when the called party consents to receiving the call, “is the only effective means of protecting telephone consumers from this nuisance and privacy invasion.”  Declaratory Ruling and Order of the Federal Communications Commission, adopted June 18, 2015 (“FCC 15-72”) at 20 (emphasis added). 

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