One of America’s biggest income tax return preparation companies, one of the country’s largest credit card companies and an online provider of discounted dining vouchers have been hit with a potential class action lawsuit accusing them of sending spam text messages as part of a coordinated promotional campaign.
On March 11, Jackson Hewitt, American Express and Restaurant.com were each named as defendants in a federal complaint filed by plaintiff Phil Hollingsworth, of far northwest suburban Marengo, on his own behalf and on behalf of potentially tens of thousands of others who could be included as potential members of a plaintiff class.
Hollingsworth is represented in the action by attorney Sergei Lemberg, of Lemberg Law, of Wilton, Conn.
According to the complaint, Hollingsworth, like many across the country, provided his cell phone number to Jackson Hewitt. The complaint did not specify when, how or why Hollingsworth gave his mobile number to the provider of income tax return preparation services.
However, the complaint said, on Feb. 10, Hollingsworth began receiving text messages on his mobile phone from Jackson Hewitt, promoting itself as well as extending special offers from Restaurant.com and American Express for clients of Jackson Hewitt.
Specifically, sample text messages cited in Hollingsworth’s complaint said those who use Jackson Hewitt to prepare and file their federal income tax returns can receive any federal income tax refunds “up to 2 days faster” if they open an American Express Serve Card. Further, if tax refunds are paid onto the American Express Serve Card, the text messages said such customers can also receive a voucher for $25 off a restaurant meal through Restaurant.com.
The text messages continued to come to Hollingsworth’s mobile phone until at least Feb. 23, the complaint said, even though Hollingsworth twice replied to the text messages with the word “Stop,” following the instructions provided at the end of the promotional text messages.
According to the complaint, Jackson Hewitt was not clear enough in explaining to Hollingsworth and others believed to have received similar text messages about “the consequence of providing Jackson Hewitt their phone number,” and did not specify that the customer was agreeing “unambiguously to receive automated text messages from or on behalf of” Jackson Hewitt, American Express or Restaurant.com. This, they said, was a violation of federal telecommunications law.
Further, the complaint alleged Jackson Hewitt violated the law by continuing to send text messages even after receiving a reply from the recipient asking them to stop.
And the complaint said the text messages also violated prohibitions in federal law against sending non-emergency automated text messages to mobile phones without expressed written consent of the recipients.
Hollingsworth’s complaint asked the court to certify two potential classes of plaintiffs: Those who, in the last four years, received promotional text messages from Jackson Hewitt without first providing “clear and conspicuous prior express written consent” to receive the messages; and, those who, within the last four years, continued to receive the text messages even after they replied “Stop.”
The complaint asked the court to issue injunctions barring Jackson Hewitt from continuing to send the text messages, and statutory damages of $500-$1,500 per text message sent in violation of federal law, plus attorney fees.