By: Richard Braun, Ruling Sports Intern (Twitter: @RicBraun)
The Pittsburgh Penguins are being sued in a class action suit for a claim that can only be described as frivolous.
At issue in this lawsuit is the Penguins’ text message alert system. The system sends subscribers texts messages about team news, scores, and the like. Fred Weiss, a Pens fan from California, signed up to receive these text messages. The terms and conditions of this service state the following:
“Your carrier’s standard messaging and data rates apply to all SMS correspondence. Other charges may apply. By subscribing, you consent to receiving, from time to time, further text messages from us which may include offers from us, our affiliates and partners. Available on participating carriers. Maximum of 3 messages a week. To end this service, text “STOP” to 32623. For help text “HELP” to 32623 or email.”
In the complaint, Mr. Weiss alleges that the text messages he receives are in “excess” of this maximum of three texts a week. How much in excess? The complaint alleges that Mr. Weiss received five texts in the first week, and four in the second. This apparently is a violation of the Telephone Consumer Protection Act, which states in part that “it shall be unlawful…to make any call…using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a paging service, cellular telephone service…or any service for which the called party is charged for the call.” The Act does not specifically mention text messages, so it is possible that they are not included, however for the sake of argument we are going to assume they are.
Here, the texts received may cost subscribers money, assuming that they do not have an unlimited text message plan. Depending on the carrier, individual texts typically cost around $.20. So instead of deciding to cancel the service, Mr. Weiss is suing because of the $.60 he is out of as a result of the unwanted text messages. He further claims that these texts are an invasion of privacy and a nuisance. However, deleting unwanted texts takes hardly any time at all, or they can be ignored.
What’s even more comical is the amount in damages Mr. Weiss is seeking. In addition to allowing for an injunction on the harmful conduct, the aforementioned Telephone Consumer Protection Act allows recovery of any actual monetary loss, or to receive $500 for each violation, whichever is greater. Not only that, but if the Penguins willfully and knowingly violated this law, as Mr. Weiss alleges, then the plaintiff is entitled to treble damages. So for each $.20 text message per week in excess of the three allotted in the terms and conditions, Mr. Weiss is seeking $1500. Add that up for each subscriber to the service in the class action suit, and you are looking at a ridiculous penalty for something so minor.
The terms and conditions also give Mr. Weiss and any other dissatisfied customers a very simple remedy if they dislike these extra text messages: text the word “STOP.” Sending out that text, which would take 30 seconds, seems like a much more simple and rationale approach to fixing this problem.
Suits as frivolous as this rarely actually make it to trial, and are usually dismissed. There are certain rules in the Federal Rules of Civil Procedure that aim to reduce the amount of frivolous suits, notably Rule 11. Rule 11(b) states that when a lawyer signs a pleading, such as this complaint, they acknowledge the pleading is necessary and isn’t done to harass another party. Further, the claims in the pleading must be warranted by existing law. A court is allowed to impose any sanction that it feels will deter the conduct in question, which is usually a fine. Rule 11 typically does not come up and is more often talked about in the classroom than anywhere else, but the Penguins could threaten Mr. Weiss’ attorneys with a Rule 11 motion in an attempt to get them to drop the suit. Mr. Weiss’ claims are technically supported by existing law, but the pleading is far from necessary. The main goal behind the Telephone Consumer Protection Act was to protect people from harassing phone calls from credit agencies and telemarketers, not to allow angry customers to recover for receiving a couple extra texts a week. Lawsuits like this only serve to harass defendants and drive up the cost of litigation.
The likely result of this lawsuit is a dismissal. It is possible that the three text maximum only applies to the “further text messages” from sponsors. If that is the case, there Mr. Weiss does not state any claim for which he can recover. What is also possible is that because the harm done was so negligible, there was no breach of contract and no violation of the Telephone Consumer Protection Act. For the time being, the Penguins are stuck dealing with a lawsuit that has little basis in reality.