Papa John's settles texting suit

Last year a class action law suit was filed against Papa John’s for violation of the Telephone Consumer Protection Act (TCPA) for texts received by Papa John’s customers. Customers allege they never opted in to receive promotional text from the company. Papa John’s claim that they didn’t send the marketing, but instead was sent by third party contractors.
A blog post on lawyers.com says that Papa John’s settled the case for $16.5 million.

[Plaintiff’s lawyer] McCue recently represented a plaintiff before the FCC, which resulted in a ruling clarifying that companies who contract other firms to make illegal phone calls can still be held liable under the TCPA. The rule could have hurt Papa John’s claim that it was their marketing contractor, not them, which sent the unwanted texts, had the lawsuit ever gone to trial. The FCC ruling further noted that the company selling the product in question is more likely to be held vicariously liable for phone calls or texts if it authorized the marketers to act on its behalf and use its brand name, and if it helped design training sessions or provide information about the product to the people actually making the calls. “This Order is very significant for consumers as it sets forth the circumstances pursuant to which defendants will be liable for telemarketing acts of third parties in violation of the TCPA,” the attorney says.”Enforcement of the TCPA is the only realistic means in which consumers can address and prevent illegal telemarketing.”

The FCC ruling doesn’t impact email marketing, but the revised definition of “initiate” may have roots in the CAN SPAM act. CAN SPAM also uses the “initiate” terminology to designate who sent or procured an email to be sent. The FCC ruling states.

we clarify that while a seller does not generally “initiate” calls made through a third-party telemarketer within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers. Dish Network Settlement with FCC.

Overall, it seems Papa John’s has discovered that hiring someone to do their law breaking for them doesn’t necessarily mean they’re off the legal hook. It’s probably too much to hope that real companies will be held accountable for the spam sent advertising their products and services.
Hat Tip: CAUCE

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What Happens Next…

or Why All Of This Is Meaningless:
Guest post by Huey Callison
The analysis of the AARP spam was nice, but looking at the Mainsleaze Spammer Playbook, I can make a few educated guesses at what happens next: absolutely nothing of consequence.
AARP, if they acknowledge this publicly (I bet not) has plausible deniability and can say “It wasn’t us, it was an unscrupulous lead-gen contractor”. They probably send a strongly-worded letter to SureClick that says “Don’t do that again”.
SureClick, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. They probably send a strongly-worded letter to OfferWeb that says “Don’t do that again”.
OfferWeb, if they acknowledge this publicly (I bet not) has plausible deniability and can say ‘It wasn’t us, it was an unscrupulous affiliate”. And maybe they DO fire ‘Andrew Talbot’, but that’s not any kind of victory, because he probably already has accounts with OTHER lead-gen outfits, which might even include those who also have AARP as
a client, or a client-of-a-client.
So the best-case result of this analysis being made public is that two strongly-worded letters get sent, the URLs in the spam and the trail of redirects change slightly, but the spam continues at the same volume and with the same results, and AARP continues to benefit from the millions of spams sent on their behalf.
I’m not a lawyer, but I was under the impression that CAN-SPAM imposed liability on the organization that was ultimately responsible for the spam being sent, but until the FTC pursues action against someone like this, or Gevalia, corporations and organizations will continue to get away with supporting, and benefiting from, millions and millions of spams.
As JD pointed out in a comment to a previous post: sorry, AARP, but none of us are going to be able to retire any time soon.

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