Antitrust Law Daily Wrap Up, PRIVACY—EDVa: Providing Cell Phone Number in Online Registration Was Not Consent to Promotional Text Messages, (May 16, 2013)

By William Zale, J.D.

In a Telephone Consumer Protection Act case brought by a married couple based on their receipt of promotional text messages, Papa John’s was not entitled to summary judgment on the theory that the couple consented to receive the messages by voluntarily providing their cell phone number in an online registration form, the federal district court in Norfolk, Virginia has ruled (Downing v. Papa John’s USA, Inc., May 15, 2013, Davis, M.).

Although Papa John’s argument might prevail on different facts, here it was undisputed that its website specifically asks whether a customer consents to receiving promotional texts. If plaintiffs version of events is assumed, their decision not to elect to receive promotional texts constituted an "instruction to the contrary" informing Papa John’s not to send promotional texts, the court determined.

The plaintiffs advanced evidence indicating that Papa John’s engages in the practice of sending "opt in" messages to Verizon Wireless subscribers (like the plaintiffs) that elect to receive promotional texts. Plaintiffs also demonstrated through documentary evidence that Plaintiffs never received an "opt in" text in either July of 2009, when they purportedly opted in, or in October of 2009, when they actually began receiving promotional text messages.

Viewing the evidence in the plaintiffs' favor, as was required at the summary judgment stage, reasonable inferences could be drawn from the facts that would support the plaintiffs' claim that they did not receive texts from defendants prior to October 2009, because they did not affirmatively elect to receive texts during the online registration process.

The case is No. 2:12cv422.

Attorneys: Christopher Colt North for Eileen Downing. Jason Emmanuel Manning (Troutman Sanders LLP) for Papa John's USA, Inc.

Companies: Papa John's USA, Inc.

Cases: Advertising Privacy VirginiaNews