Cook County Record

Monday, October 14, 2019

Court filings: Lawsuit vs SchoolMessenger imperils schools' ability to text, call parents, students

By Jonathan Bilyk | Mar 28, 2017

The call center company behind the SchoolMessenger service, which specializes in helping schools across the country instantly communicate with parents, students and their communities, is in federal court in Chicago, attempting to fend off a massive class action lawsuit they warn could disrupt the ability of the schools who rely on the vendor to send text and voice messages requested by parents to spread the word about school events, including school closings and other emergencies.

In January, a group of four plaintiffs introduced a class action lawsuit in Cook County Circuit Court in Chicago against West Interactive Services Corporation, a Nebraska-based company which has done business as SchoolMessenger.

The plaintiffs, identified in the complaint as Jason Nesbit and Linda Hobbs, each of Illinois, Stephanie Stordahl, of Michigan, and Shannon Charles, of California, are being represented by attorneys Myles McGuire, Evan M. Meyers and Eugene Y. Turin, of the McGuire Law firm, of Chicago.

The complaint alleged the company had violated the federal Telephone Consumer Protection Act by sending automated voice and text messages instantly to perhaps millions of mobile and wired phones on behalf of tens of thousands of schools and other educational organizations in Illinois and throughout the U.S.

While conceding the federal law carves out broad exceptions for schools to send such messages for emergencies and other necessary topics to parents and others who consent to receive the messages, the lawsuit asserted West Interactive had “expanded the types of automated calls it places to include calls for purposes that have not been exempted … including fundraising events, political campaigns, community activities, civic matters and social occasions,” all “in an effort to increase sales and to attract additional customers to its automated calling services.”

The complaint asserts the plaintiffs and others never consented to receive messages from the schools, yet “had their privacy invaded … on numerous occasions over the past several years” by receiving messages that were “purely informational and did not relate to any emergency situation or a student’s attendance.”

The complaint, however, does not specify the schools or districts from which they received the messages, how many messages any of them received, or what the messages addressed.

The plaintiffs asked the court to expand their lawsuit to include many thousands of others across the country who may have received allegedly similar non-emergency messages sent by West Interactive on behalf of schools.

Under the TCPA, each violation – which can be defined as each allegedly improper text or phone call – could result in damage awards of $500-$1,500.

West Interactive can send thousands or even more than 1 million such messages each day.

In February, West Interactive took the case to federal court in Chicago.

And this month, the company has asked the court to limit the scope of the McGuire Law attorneys’ efforts, requesting the case and potential classes of additional plaintiffs be limited only to the schools or school districts that purportedly asked West Interactive to send the allegedly improper messages to the four plaintiffs.

Further, the company asked the court to force the McGuire firm to share the cost of preserving the activity records needed to substantiate the case. West Interactive asserted in a motion filed Feb. 16 that the demands placed by the plaintiffs and their lawyers would require it and potentially 48,000 schools across the country to spend millions of dollars to keep and produce the records of messages sent, most of which, West said, would have no bearing on the actual facts of the case.

Should the court not force the McGuire firm to share these costs and limit the scope of the case, West argued the court would be forcing West to “defend the case with one hand tied behind its back, and consider settlement solely based upon the costs of litigation rather than the merits of the case.”

“Plaintiffs’ lawsuit jeopardizes the current relationship each school has with its parents, and the continuation of communications between those schools and parents regarding their students – communications that are not only consented to, but wanted,” West Interactive wrote in its motion to shift costs.

In response, the plaintiffs argued their evidence preservation requests are not asking anything extra of West Interactive beyond its normal storage and archiving. They noted the company sends texts on behalf of schools which contain hyperlinks directing message recipients to a page on a West website where recipients can listen to the voice messages associated with the school event or emergency. They asserted those links were still active and accessible weeks or even months later.

And plaintiffs argued the attempt to limit the scope of the case was a premature attempt to short-circuit the class action.

In a brief filed March 21, West reasserted its contentions that, while it does retain some of the files and messages sought by plaintiffs, it doesn’t do so with all messages nor does it do so for an unlimited amount of time, as its retention policies are set by agreements it holds with the schools for which it sends messages.

“What is different now is that (West Interactive) is required to maintain all of the data regarding all of the calls made on behalf of all of the schools and school districts regardless of client requirements,” West wrote in its response.  “To the extent plaintiffs wish to represent a purported class of people that received those messages, they should be required to bear the costs of WISC’s preservation of this class data.”

West Interactive is defended in the action by attorneys with the firm of Sessions Fishman Nathan & Israel, of Chicago.

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Organizations in this Story

McGuire Law PC Sessions, Fishman, Nathan & Israel U.S. District Court for the Northern District of Illinois West Interactive Services Corporation