Lawsuits Filed Against Twitter, Facebook & MySpace For Confirming That A User No Longer Wanted Text Messages

from the frivolous-lawsuits dept

Fri, Apr 29th 2011 7:39pm — Mike Masnick

Ah, class action lawsuits in action. If you want an idea of how the class action lawsuit process is often used for completely ridiculous purposes, just take a look at three separate lawsuits filed by a bunch of California lawyers. Each lawsuit is separate (and embedded below), and all three were pointed out by Eric Goldman. The lawsuits are against Twitter, Facebook and MySpace, and all are basically identical, other than the plaintiff. They're all attempts to file class actions against these companies for violating the Telephone Consumer Protection Act, which is supposed to block unsolicited contact to mobile phone lines. In all three cases, the plaintiffs were people who willingly turned on a feature in early April to receive text messages from each of these services. At some later date (probably a few days), each plaintiff chose to no longer receive those text messages, and responded to a message received by texting back "stop." As is quite typical, each of these services sent a message back to confirm that the person no longer wanted to receive such text messages. This is a completely standard procedure. And yet, these lawsuits claim that those messages broke the law, because the second the "stop" message was sent, any and all future messages, even the confirmation message, were unsolicited:

Plaintiff continued to receive text message notifications from Defendant. At some point Plaintiff decided that he no longer wanted to receive text message notifications on his cellular telephone from Defendant.
Plaintiff then responded to Defendant�s last text message notification by replying �stop.�

At this point, Plaintiff withdrew any type of express or implied consent to receive text message notification to his cellular telephone.

In response to receiving this revocation of consent, Defendant then immediately sent another, unsolicited, confirmatory text message to Plaintiff�s cellular telephone.

I can't see any of these lawsuits getting very far, and one would think there should be some sort of sanctions for setting up a situation like this solely for the purpose of filing a class action lawsuit. A confirmation message that the service provider is not to contact you again is hardly an unsolicited contact. It seems like it should be easy to argue that it was very much solicited by the individual issuing the "stop" command. That this law firm filed all three of these identical lawsuits at about the same time, also suggests that the message was very much solicited in that this law firm wanted to receive the confirmation message, solely for the purpose of filing a silly class action lawsuit (or three). The thing is, if this lawsuit goes anywhere, it'll create more of a hassle. Many of us like receiving a confirmation that we've been unsubscribed from something. This is clearly not the intent of the law, and one hopes that the courts will slap this down quickly.

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Filed Under: class action, spam, tcpa, text messaging, unsolicited
Companies: facebook, myspace, twitter

36 Comments

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Anonymous Coward, 29 Apr 2011 @ 7:47pm

Confirmation messages like that are minor nuisances in my book. Slightly annoying, but certainly nothing worth suing over.
I'd say those lawsuits are doing more harm by tying up the court system than those messages did by (briefly) tying up would-be unsubscribers.
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David, 29 Apr 2011 @ 8:47pm

what?
I'd prefer a confirmation message just to make sure my request went through. it's the samething with unsubscribing from emails from someone. Sometimes they send a confirm. message.

Is this situation even SLIGHTLY sue worthy? lol NO.

Huge waste of money, plaintiffs!

Like the article said: it IS a SOLICITED message that the plaintiff STARTED.
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Anonymous Coward, 29 Apr 2011 @ 10:58pm

isn't it common knowledge that when you ask to be removed from a mailing list you should wait 24 to 48 hrs for your details to be completely removed from the database?
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The eejit (profile), 29 Apr 2011 @ 11:05pm

Re:
Technically, it can be stored up toi 5 business days.
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Anonymous Coward, 30 Apr 2011 @ 1:35am

Re: Re:
my bad.

I guess its no so common.
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FuzzyDuck, 30 Apr 2011 @ 3:13am

Lawsuits
There should be the obligation to post a bond when you file a lawsuit for damages, something like 10% of the money you claim. If you loose it goes to the person/entity you sued, if you win you get it back.
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Christopher (profile), 30 Apr 2011 @ 3:31am

Re:
I disagree. For goodness sakes, if I have marked that I do not want them to send me e-mails or text messages anymore on a page or via something, there is NO reason to send a confirmation of that confirmation that I don't want those messages/e-mails.
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Christopher (profile), 30 Apr 2011 @ 3:36am

Re: Lawsuits
No, there shouldn't. That would keep people with REASONABLE lawsuits from filing lawsuits that they should.

Frankly, in my estimation, this is a REASONABLE lawsuit.... they do not need to 'confirm' things in umpteen ways.

ONE e-mail or text message saying I don't want anymore message should be enough with NO confirmation.
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Anonymous Coward, 30 Apr 2011 @ 4:14am

Idiots that want instant satisfaction. What a waste of time!
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NotMyRealName (profile), 30 Apr 2011 @ 4:55am

What the hell can the damages possibly be? Where do they get the $1500/per? The most I've ever heard of a text message costing someone is a quarter. I don't see a confirmation message as causing any physical mental or emotional stress/damage.

wait maybe...
$.75 (actual damages) + 200000% (lawyer fees) = $1500

What they need to do is take the computer from the last story and teach it to recognize genuine laughter. (kind of an extension of what it does anyway) Then if the judge lols the case is dismissed.
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someone (profile), 30 Apr 2011 @ 5:59am

Re: Re: Lawsuits
This is no different than calling customer service:
Customer: Please stop sending me txt messages
CSR: Ok, you would like us to stop sending you text messages?
Customer: Yes
CSR: Ok, I have setup your account so you will no longer receive txt messages. Is there anything else I can help you with today?
Customer: No

People make mistakes, things are misunderstood, it is REASONABLE to confirm what the customer wants so there is no confusion. It is also REASONABLE to confirm that the customer is actually making the request.
Not confirming and causing a customer to loose a feature they want would be UNREASONABLE.

You also neglect to understand how simple it is to spoof an email.
If ONE email is enough to say you do not want anymore messages then all a malicious person needs to know is your email address and THEY can make that request for you.
With the confirmation process the malicious party can not complete the removal process just by simply knowing your email address.
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Deirdre (profile), 30 Apr 2011 @ 6:07am

Check the US code cites
The text message is arguably a violation of 47 USC 227 but I would never have been involved with this case. It's one of those where the plaintiff may be found to be technically right but should be awarded damages of a $1.00.

I vote for receiving confirmation notices. It makes it clear the request went through.

As for the requested amount: "(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation...." And the $500 is tripled for willful and knowing violation.
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NullOp, 30 Apr 2011 @ 6:08am

Surprised....
Am I surprised by such actions....nope! I do wish there were consequences for such actions such as the California Bar Association pulling lawyers tickets for such actions when it's done as a pattern.
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el_porko (profile), 30 Apr 2011 @ 8:30am

Good luck to them
Why would you need to send a confirmation message? How could one not understand that recieving the message STOP from a unique cell phone numbe mean any thing else?

What would be the use of recieving a confirmation from the same said cell phone?

I hope they get millions. Then maybe the stupidity would STOP!
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Anonymous Coward, 30 Apr 2011 @ 8:34am

Re: Re:
Considering that the confirmation message is not part of the subscribed service there is no reason they should be held accountable for them. You elect to not receive messages about service X and they confirm that you will not receive those messages.
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Ccomp5950 (profile), 30 Apr 2011 @ 10:06am

Re: Re: Re: Lawsuits
how does one loose a feature. I mean if they held their grip on it harder would it still be there? Perhaps if someone tightened the screw a bit more?

The word you are looking for is "lose"
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Anonymous Coward, 30 Apr 2011 @ 10:13am

I have another idea. How about we take these retards' cell phones away? They clearly have no idea WTF they're doing. Along with anybody else who can't grasp the simple concept of a confirmation message that is totally standard. Fuck, anybody with 2 brain cells to rub together should be able to get this.
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Joe Smith, 30 Apr 2011 @ 10:30am

Re: Lawsuits
Yeah - that way only people with money could sue.
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Anonymous Coward, 30 Apr 2011 @ 10:38am

Re: Re: Re: Lawsuits
You have hit the nail on the head. I would argue in court, as a technical person, that the process of opting out is not complete until the confirmation is sent. This is needed precisely to defend against spoofing from a different cell phone or computer. A critical point is whether the confirmation is actually effective against such spoofing. This is quite a different question than whether the user is annoyed at the confirmation message because their was no spoofing. That annoyance happens because people aren't aware of the ease of spoofing and thus, the reason for confirmation.

Here is an analogous situation that could be used in court (I am guessing it would be effective but IANAL). If one uses the internet, and along with that the TCP/IP protocol stack to request of some entity not to send any more messages. Your request has to be confirmed with an ACK message as part of the TCP protocol. Is that then a violation? This is not far fetched, as you could be using VOIP on your smartphone to make the request. Even if VOIP and TCP is not used, the process should be considered a type of protocol which requires confirmation to complete.
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Anonymous Coward, 30 Apr 2011 @ 12:16pm

So if this lawsuit is successful, canceling my Sprint account might go as follows:

Sprint: Hi this is Sprint customer service, can I help you?

Me: I'd like to cancel my wireless account.

*CLICK*

Me: ... Huh?
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Ilfar, 30 Apr 2011 @ 3:24pm

Re:
You're supposed to hang up afterwards too, any further action on your part would suggest you wish to activate your account again. Cue reconnection fee!
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bigpallooka (profile), 30 Apr 2011 @ 3:26pm

Re:
A request is initiating a conversation which remains incomplete without a reply. The question is whether simply replying to a request by effectively hanging up (as stated above) is a sufficient or proper reply. Intent is another part of this issue. If the service provider is attempting to protect you by the simple method of asking "Are you sure?" then the customer should be thanking them for protecting them from errors (accidental or otherwise). If the service provider didn't provide this double-checking function it could be argued that they are culpable for any loss of service if there is an error (accidental, technical or malicious). Clearly the lawsuit is frivolous as the annoyance factor is so small as to be negligible to all but those with Personality Disorders. The only thing this lawsuit can possibly achieve is to make it more difficult for service providers to ensure continuity of service for their customers. We all have those buttons that when pushed make us say "Well DUH!" but that is no excuse for acting out a drama or taking legal action for it. This is like suing a fast food outlet for being asked "do you want fries with that?" when you don't and specifically asked for a "burger only".
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hautedawg, 30 Apr 2011 @ 5:56pm

RE: Good luck to them
I would completely understand your point, IF and only if, I had not had a text message not go through, or an email that was lost in the interwebs, or any one of a thousand other things. Also, if I sent STOP to the wrong company, and actually wanted to get the text that came, but not the one before.

The confirmation is a good thing. It helps us from making mistakes that we, most of us anyway, occasionally make.

Just be glad we are not in the days of telegraph service stop
we'd have bigger problems stop
we'd stop getting stop messages stop

These attorneys are obviously not doing well if they are drumming up this kind of business. STOP!
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DRG (profile), 30 Apr 2011 @ 6:44pm

Confirmation
It is very easy to spoof an email. The confirmation sent to you is a way of verifying that you are the one requesting a stop to messages. Otherwise anyone could unsubscribe you from anything.
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Josh Taylor, 30 Apr 2011 @ 7:04pm

Here's an idea for the Plaintiff and the rest of you people: Make real friends. Get rid of your cell phone and start socializing in the real world. Get yourself a real date and not virtual dates.

Virtual friends and virtual dates are demons. Try finding some real friends or a boyfriend/girlfriend who reads The Bible and knows Jesus as their Lord & Savior.

Cell phones and social media ruins personal, marital, and spiritual relationship.
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Overcast (profile), 30 Apr 2011 @ 7:22pm

So.. what kinda of 'damages' here? 35 Cents?
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Joe Mamma, 30 Apr 2011 @ 10:13pm

They call it "strict liability"...
The TCPA is a strict liability statute like the laws that govern the speed limit or even statutory rape. You either broke the law or you didn't - there is no defense and your intent isn't at issue. What if Twitter had a policy for sending 3 confirming texts so that they absolutely, positively made sure they got it right? Would that then convince everyone that something was screwy with Twitter's texting policy? One revocation is enough. The TCPA allows for $500 dollars for each negligent violation of the law - the attorneys usually make 20% - 25% percent and recover on a contingency basis. The FTC has recently gone after one serial text spammer who sold the "STOP" messages as confirmed leads because by replying to the message the sender now could confirm that the recipient was a real person with a cell phone and not a fax line or something else. This texting b.s. is out of control and someone needs to put Twitter, Facebook, etc. in check.
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Shon Gale (profile), 1 May 2011 @ 5:54am

They're Nuts! Money to burn huh?
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Anonymous Coward, 1 May 2011 @ 6:17am

Re:
My usual response to annoying and frivolous litigation such as this would be and aluminum baseball bat, judiciously applied in as close proximity as possible to the cranial parietal or occipital bones of both plaintiff and plaintiff attorney. This usually prevents further litigation. Keeping the number of swings to less than two is ideal, but if necessary, twenty or thirty is allowable.
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Anonymous Coward, 1 May 2011 @ 1:43pm

If these three lawsuits do not get dismissed with prejudice, the judge(s) involved should be impeached for incompetence.
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wvhillbilly (profile), 1 May 2011 @ 11:22pm

Frivolous lawsuits
I think the root of this problem is we have too many lawyers with not enough to do, so they file silly lawsuits just for recreation.

People who file silly or frivolous lawsuits should be made to pay their defendants' legal expenses when they lose. That would stop a lot of these nonsensical lawsuits.
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wvhillbilly (profile), 1 May 2011 @ 11:34pm

Re: Damages
I don't know about other cell phone providers, but AT&T charges a penny per Kbyte, one cent minimum per text message.

I'm sure a penny for a one time confirmation message isn't going to break anybodies' bank account. And one penny certainly isn't worth suing over. Just delete the message and go on.
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Jimr (profile), 2 May 2011 @ 7:27am

I hate those confirmations
Although I have texting including in my plan I do not have some high data texting plan - which run at least $1 a message and up to $2.50 a message if images are included. Those 'special' message can not even display on my phone and I only get the subject line (old cell phone).

I somehow how got onto one of those mailing list and got these daily messages. I saw my bill and was told the only way to stop them was to reply and request I stop them. I did and they sent me one of these high prices special message saying they got may request. Then another one of these high prices special messages saying they where processing it. Then another one of these high prices special messages saying it was just about done processing. Then another one of these high prices special messages saying it was done. Then another one of these high prices special messages saying I could sign up again if I wanted to. Then another one of these high prices special messages asking why I quite the service. Then another one of these high prices special messages asking me to reconfirm my stopping the service. Then only about 5 more over the next month to ask if I wanted to sign back up. Total cost was nearly $100 to quite the service I do not ever remember signing up for.
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Ryan Diederich, 2 May 2011 @ 8:28am

hmmm
When you sign up for such a texting service, isnt there info like "To stop receiving messages, reply with 'stop' and you will receive a confirmation message"

Even without the last line, it will be easy to add it in. Then, by signing up, you are agreeing to the confirmation message from the beginning
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HM, 2 May 2011 @ 9:26am

Re:
stop
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Jimbo Jones, 23 May 2011 @ 10:58am

Rules are the Rules
Nice work litigators, nothing like initiating a sequence of events and then suing the responding parties. The user/consumer that sends STOP is initiating a sequence of events that are mandated by the Industry best practice guidelines and all the carriers.

Nothing like being sued for complying with the rule book. Thanks go to the "Peoples Republic of Komifornia" Get a real job loosers.
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