Zoomer, a company which provides third-party “independent contractor”
drivers to pick up and deliver take-out meals on behalf of restaurants, is
facing a class action complaint over text messages the company sent to
restaurant customers to promote its delivery tracking smartphone app.
Justin Hardesty, an Illinois resident represented by
attorneys with the firm of Edelson P.C., of Chicago, filed his complaint Jan.
10 in Cook County Circuit Court against Philadelphia-based Zoomer Inc.
According to the complaint, restaurant customers are unaware
their deliveries will come via Zoomer drivers, and each customer gets “at least
one automated and unauthorized text message” promoting Zoomer’s mobile app. Hardesty contends this constitutes a violation
of the federal Telephone Consumer Protection Act and Illinois Consumer Fraud
and Deceptive Business Practices Act.
Hardesty’s complaint said food delivery has grown into a $30
billion market. Zoomer, seeking its slice of the action, sends agents to pick
up the food from partner restaurants, which provide the driver with the address
and phone number of the customer who ordered the food. Zoomer then gets a share
of revenue from each order from its restaurant partners.
Zoomer also offers an app allowing customers to track their
delivery, as well as order from a list of Zoomer partners in proximity to the
mobile device. Since Zoomer “has aspirations of being a leader in the big
business of food delivery,” the complaint states, it tries to get customers to
download the app via text advertisements. The intent, Hardesty alleged, is to
drive customers toward Zoomer clients.
The complaint included a text sent to Hardesty confirming a
delivery order he placed Nov. 10. It reads: “Thanks for ordering from Johnny
Brown Bag! Track your delivery by downloading the Zoomer app at http://track.zoomerdelivery.com.”
Hardesty said the restaurant never mentioned Zoomer while he
placed his order, nor did it inform him his contact information would be
provided to Zoomer, or that Zoomer would send him text messages.
The class would include anyone in the U.S. who received at
least one text advertisement from Zoomer without providing a number directly to
Zoomer prior to receipt. There also would be a subclass specifically for
Illinois residents suing under the Illinois law.
Hardesty said the unauthorized text messages and use of an automated
telephone dialing system violate federal telecommunications law and could
require Zoomer to pay $500 per violation. Since “Zoomer’s misconduct was
willful and knowing,” he asked the court to triple those damages.
The Illinois subclass allegations also note “damages in the
forms of the diminished value and utility of their telephone equipment and
telephone subscription services,” including a negative effect on battery
performance and the cost of electricity to charge phones that would not have
been used if the unsolicited advertisements had not been received.
In addition to class certification and a jury trial,
Hardesty seeks an injunction requiring Zoomer to stop sending unauthorized text
advertisements and an order forcing it to “disgorge any ill-gotten funds
acquired as a result of its unlawful telephone calling practices."