Checkers, Vibes Media can't dismiss text ads class action yet, judge says

By Chandra Lye | Aug 1, 2018

CHICAGO - A federal judge has denied a request by drive-in fast food restaurant chain Checkers and Vibes Media LLC to throw out a class action lawsuit accusing them of sending text messages to customers without including instructions for how to stop more from coming.

Plaintiff Madeleine Yates had filed a lawsuit in 2017 claiming Checkers and Vibes violated the federal Telephone Consumer Protection Act by repeatedly sending her advertisements via text message. The defendants had asked the complaint be dismissed, asserting the plaintiff had failed to state a claim or had lacked standing to bring the suit, according to the court decision.

Although Judge Sharon Johnson Coleman denied the defendants' motion, she did ask Yates “to provide a more definite statement of her claims.”

The order said Yates initially sent a text message to a short code number to earn a free cheeseburger coupon from Checkers. In return she received a message advising her to opt in to get the coupon “and other deals from Checkers/Rally’s.”

U.S. District Judge Sharon Johnson Coleman   Washington University School of Law

Yates said she then received more than 10 text message ads, but only one gave instructions on how to opt out of future messages.

In support of their dismissal motion, the opinion said the defendants submitted an advertisement like the one Yates would have seen regarding the free coupon, claiming “the advertisement contains fine print at the bottom.”

“The defendants contend that Yates has failed to allege the basic elements necessary to state a claim for violation of the TCPA," the ruling said. "The defendants assert that Yates must (demonstrate) the phone number at issue, the number of text messages received and the date and content of those messages. The court does not believe that quite this level of detail is necessary, although it does agree that Yates’ specific factual allegations are minimal.”

Judge Coleman instructed Yates to compose a statement that indicates the approximate date, time and details of each text message she claims she received.

Yates is represented in the case by attorneys with the firm of Beaumont Costales, of Chicago and New Orleans. 

Checkers is defended by the firms of Hunton Andrews Kurth LLP, of Dallas, and Richmond, Va., and Hawkins Parnell Thackston & Young LLP, of Chicago. 

Vibes is represented by the firms of Horwood Marcus & Berk Chartered, of Chicago, and Harris, Wiltshire & Grannis LLP, of Washington, D.C.

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