A Chicago federal judge will allow a potential class action lawsuit
to proceed against the makers of “After School,” a smartphone app designed to allow
students attending the same high school to anonymously share messages, saying
the app’s use of allegedly unauthorized invitational text messages to grow its
user base could violate federal law.
And this decision, plaintiffs in the class action now say,
could have implications for another class action lawsuit they have pending in
Chicago federal court against the makers of another social networking
smartphone app, which also sends allegedly unauthorized invitational text
messages to other potential app users.
On Dec. 20, U.S. District Judge Matthew F. Kennelly denied a
motion from One Inc., maker of the After School app, to dismiss the lawsuit
brought by plaintiff Matthew Warciak.
Warciak is serving as the lead named plaintiff in the
putative class action filed against San Francisco-based One by attorneys with
the law firm of Edelson P.C., of Chicago.
Warciak and the Edelson attorneys are also working together
on lawsuits also pending in Chicago federal court against Nikil Inc., maker of
the Down To Lunch smartphone app, and against Subway Restaurants.
In the class action
against One, which was originally filed in Cook County Circuit Court in June
2016, Warciak and his attorneys have argued the After School app violates federal
and Illinois laws by sending text messages inviting other potential users it
finds in the contacts directory in After School app users’ phones.
The lawsuit was removed to federal court in July.
According to court documents, After School uses a multi-step
process to verify users are students at the high school they claim to attend. Without
this verification, users cannot join one of the virtual communities attached to
actual high schools.
At some point in the verification process, the court
documents said, prospective users are asked to identify at least four other
students at a particular high school to prove they also attend the school. At
this point, the app purportedly accesses users’ contacts directory, and then
sends text messages to the other selected students, inviting them to also
download and use the After School app.
Since the app never informs users it will send those
invitational text messages, or secures their permission to do so, Warciak
alleged the app’s actions violated the federal Telephone Consumer Protection
Act and the Illinois Consumer Fraud and Deceptive Business Practices Act.
In response, One Inc. argued the users’ acts in the user verification
process, including selecting and identifying various classmates, should thwart
Warciak’s legal claims.
Kennelly, however, said this case appears to be different
from others One had cited to support its position.
While there is some “involvement” from After School users in
selecting the recipients of the text messages, the judge said that doesn’t mean
the users agreed to allow After School to send texted invitations.
“After School App users are at least required to make
certain selections before the messages are sent,” Kennelly wrote. “This is
immaterial, however, if the users are unaware that their selections will lead
to invitational text messages.”
Kennelly, however, said Warciak’s assertions under the Illinois
consumer fraud statute are on much shakier ground, as economic harm from the
app’s use of users’ phone battery life or text message recipients’ time “lost
answering and deleting the unwanted text messages … are so negligible from an
economic standpoint as to render any damages unquantifiable.”
He dismissed Warciak’s claims under the Illinois law, while
allowing his claims under the federal TCPA to proceed.
After securing the largely favorable ruling from Kennelly,
Warciak’s attorneys moved Dec. 21 to leverage the decision in their lawsuit
against Nikil, the makers of Down to Lunch, asking U.S. District Judge Thomas
M. Durkin to apply Kennelly’s reasoning to this lawsuit, as well.
The app works by allowing
friends – particularly, high school and college students – to suggest
activities to other friends. When they agree on an activity, such as “lunch,”
“chill,” or “study,” among others, those wishing to participate click the
button labeled “I’m Down.”
In the Down to Lunch lawsuit, also originally filed in Cook
County court in April 2016, Warciak also asserted the app accesses users’
contacts lists to send invitational text messages to other potential users
without the permission or knowledge of the user, allegedly violating the
federal TCPA law.
Just as did One Inc., Nikil also asked the court to dismiss
Warciak’s class action lawsuit against them. However, in this case, Nikil said
Down To Lunch specifically requires users to “click a conspicuously labeled ‘Invite’
button for each and every contact that the user wishes to invite to download
the Down to Lunch App.” Users also have the choice to skip the invitation step
altogether, Nikil said in court documents it has filed responding to Warciak’s
Because of such aspects, Nikil argued Kennelly’s decision in
Warciak’s suit against One Inc. should not apply in the Down to Lunch case.
“(Judge Kennelly) explained that so long as users are
informed that invitations will be sent and have a choice in whether they decide
to send messages or not, the user, and not the app, is considered the sender of
the text,” Nikil’s attorneys wrote in a brief filed Jan. 3.
Nikil Inc. is represented by attorneys with the firms of
Fenwick & West LLP, of Seattle and Mountain View, Calif., and Mandell
Menkes LLC, of Chicago.
One Inc. is represented by the firm of Hinshaw &
Culbertson, of Chicago.