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.
Class-Action Suit Against Starbucks Grinds to a Halt
Don’t even get me started about class-action lawsuits.
In most (but not all) cases they are nothing but legalized extortion. They do not seek to address or correct a wrong, but rather are directed at hyper-technical violations that are used to create a putative class. In the end, the lawyers make millions in attorney fees and the "solution" to the problem is often comical. There is no shortage of examples, but one of my favorites involved the Jenny Craig diet centers. A class action was brought because Jenny Craig was committing the heinous act of failing to disclose that all the thin people displayed in the print ads did not represent the "typical" results. (Would anyone on the Jenny Craig diet have believed that all who entered would achieve the same results as those highlighted in the ads?) The class-action lawyers were paid huge legal fees, and for settlement the represented members received – are you ready? – a set of Jenny’s diet motivation tapes.
If a business is committing a genuine wrong that is causing real injury, and refuses to correct the situation, then have at them. But my frustration comes from the fact that many of these suits involve no real wrong, and in any event could be corrected with a stern letter from an attorney.
The California Court of Appeal agreed with my opinion of class-action lawsuits in the recent decision, Starbucks v. Superior Court (2008 DJDAR 18131). In the 1970s, California passed an obscure Labor Law that prohibits employers from asking prospective employees about minor marijuana-related convictions that are more than two years old. The two-page employment application form used by Starbucks, designed for nationwide use, asks the applicant to disclose marijuana convictions, which is theoretically a violation since the applicant could choose to disclose a conviction more than two years old if unaware of the law. However, the second page of the form specifically instructs California applicants not to disclose marijuana convictions more than two years old.
Plaintiffs’ counsel claimed that was not good enough, arguing that the question and the disclaimer should be together. (A letter from my office could have corrected that, but perhaps plaintiffs’ counsel is not as persuasive.) Unfortunately for Plaintiffs’ counsel, of the three representative plaintiffs, two testified at their depositions that they understood the disclaimer, and all three testified that they had no marijuana convictions to disclose. Nonetheless, attorneys for the class were seeking the statutorily mandated $200 per offense, which would have resulted in an eight-figure award if successful. Incredibly, Judge David C. Velasquez of the Orange County Superior Court denied Starbuck’s motion for summary judgment and certified the class, allowing the case to go forward.
In reversing Judge Velasquez and ordering the case dismissed, the Court of Appeal stated that "there are better ways to filter out impermissible questions on job applications than allowing ‘lawyer bounty hunter’ lawsuits brought on behalf of tens of thousands of unaffected job applicants." Justice Raymond Ikola added, "the civil justice system is not well served by turning Starbucks into a Daddy Warbucks."
