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."