CHICAGO — A Louisiana woman has served Checker's Drive-in Restaurants with a class action lawsuit in Chicago federal court, claiming they refused to stop sending her text messages she says she didn't agree to receive.
Toby Branden claims she received multiple automated text message advertisements from the drive-in restaurant chain and Vibes Media, who also is listed as a defendant in the 12-page complaint filed Nov. 3 in U.S. District Court for the Northern District of Illinois. The plaintiff said she did not agree in writing to receive the text messages, which were clearly advertisements because the messages "unambiguously encouraged the purchase of fast food products and services," the complaint said.
Checkers Drive-in Restaurants, headquartered in Florida, also does business as Rally's.
The class action suit alleges negligent and willful violations of the Telephone Consumer Protection Act (TCPA). Branden said in the complaint that she filed the action against the defendants "to stop their practice of making unauthorized and unwanted text message calls to the cellular telephones of consumers nationwide and to obtain redress for all persons injured by their conduct."
The defendants allegedly sent the automated text messages without obtaining required consent from consumers and didn't include an automated opt-out mechanism to allow consumers to make a do-not-call request, both violations of the TCPA, according to the complaint.
Branden is represented by Roberto Luis Costales and William H. Beaumont of the firm of Beaumont Costales in Chicago.
The complaint alleges defendants "took steps necessary to physically place such text message calls and/or were so involved in placing the texts that they could be considered to have initiated them," the complaint said.
"The nature of the text messages sent by [the] defendants indicates that [they] used an automatic telephone dialing system ('ATDS')," according to the complaint.
Those text messages allegedly caused consumers actual harm by not only subjecting them "to the aggravation that necessarily accompanies the receipt of unsolicited text messages, but also because consumers frequently have to pay their cell phone service providers for the receipt of such unauthorized text messages," the complaint alleges.
Branden claims, among other things, that she and other class members experienced invasion of privacy and violations of statutory rights.
The size of the class is unknown, according to the complaint, which did speculate that the number could be in the thousands, and that members could be identified via the defendants' records.
The complaint requests multiple lines of relief available under the TCPA, including $500 per violation — and up to $1,500 per violation if defendants are found to have willfully violated the TCPA. The complaint also asks that an injunction requiring the defendants to stop all unsolicited text message activities.