Class Action Against Twitter Shows Need to Act Paranoid
In a recent T-Mobile commercial, in explaining why you pay more for slower Internet access, a character playing the part of an attorney says, "It makes sense if you don’t think about it too much." That will apparently be the argument made by the California attorney that filed a recent class action against Twitter.
Here is how this fight for justice came about. Twitter, like many other services, allows users to opt-in to text notifications. For example, let’s say you were new to Twitter, and you wanted to receive a notification whenever someone sent you a direct tweet. You can instruct Twitter to send a text to your cell phone each time you are tweeted. Then let’s say that you enjoyed these notifications for a few months, but soon you became so popular that your phone was dinging like the bells of Westminster Abbey with notifications of incoming messages.
No problem. Twitter makes it easy to turn off the notifications. Rather than to make you go on-line and make the change, or even to drill down through the notification settings on your phone, all you need to do is respond to one of these text notifications with the word "stop". Twitter politely and efficiently responds with a test message notifying you that your message was received, and never again do you receive anymore text notifications from Twitter, unless and until you turn them back on.
So how could any attorney find fault in this perfect system? Well according to the allegations of the complaint, this process violates the Telephone Consumer Protection Act ("TCPA"). You see, in order to prevent consumers from receiving spam text messages, the TCPA makes it illegal to send text messages unless they were authorized by the recipients. According to the lawsuit, although the messages were authorized by the initial opt-in, when the word "stop" was sent, that removed any authorization. Therefore, the text acknowledging that you would not be receiving any more text messages was not authorized, even though by sending "stop" you are seeking a response by Twitter and any rational person would appreciate confirmation of the request. It makes sense if you don’t think about it too much.
Lesson for all businesses: California is the class action capital of the country. When deciding if something you are doing or contemplating could get you in trouble, don’t just run it through rational thought, but imagine also that there are attorneys out there with no scruples, that will view the conduct in irrational ways in order to cobble together an action against you. (See my prior article on the attorneys that brought a class action because there were no crunch berries in Captain Crunch.)
Does this mean you must bow to the threat of legal action? Not at all. Text notifications are too important to the expansion of Twitter to forego, but with a little tweaking this frivolous action could have been made even more frivolous, perhaps even to the point that it would never have been pursued. Twitter could have added a few words to its terms of use, explaining that a confirming message would be sent in response to the opt-out request. Yes, that is not something that should need explaining, but with that additional clarification the user would have been authorizing the final message, and Twitter would not need to deal with this ridiculous suit.
Crunchberries Provide Proof Positive That the Legal System Works
Attracted by the nefarious Cap'n Crunch, calling out to her from his cereal box, holding a spoon chock full of crunchberries, Janine Sugawara bought said cereal and for four years continued to buy and consume it, all the while believing she was eating healthy fruit.
When she somehow came to realize that there was no fruit in Cap'n Crunch, she sued on behalf of herself and all the other consumers that believed that the cereal contained anti-oxidant rich crunchberries. She contended that the entire Cap'n Crunch presentation was likely to confuse consumers, especially given the way the Captain is aggressively "thrusting a spoonful of crunchberries at the prospective buyer." (See photo.)
On a motion to dismiss, Judge Morrison England, Jr., sitting in the Eastern District of California, ruled:
"In this case . . . while the challenged packaging contains the word "berries" it does so only in conjunction with the descriptive term "crunch." This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a "crunchberry." Furthermore, the "Crunchberries" depicted on the [box] are round, crunchy, brightly-colored cereal balls, and the [box] clearly states both that the Product contains "sweetened corn & oat cereal" and that the cereal is "enlarged to show texture." Thus, a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist. . . . So far as this Court has been made aware, there is no such fruit growing in the wild or occurring naturally in any part of the world."
Plaintiff's are usually given at least one opportunity to amend a complaint to address any deficiencies, but in this case the judge dismissed without leave to amend, concluding there was no way this case could be saved. As the court put it, "the survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense." The only sad part of this otherwise humorous case is that plaintiff was able to find counsel willing to ignore that common sense.
Go here for more information, and here for the complete opinion by the court.
