Pizza Hut and several franchise owners are currently defending a class action lawsuit in the U.S. District Court for Southern District of Florida based on claims that their 2011 promotional text-message campaign violated the Telephone Consumer Protection Act (“TCPA”). Plaintiff Brian Keim filed the lawsuit in May 2012 on behalf of himself and a proposed class of similarly situated individuals. In the most recent twist, the court has allowed the case to proceed, even though the plaintiff deleted evidence of the text messages from his cellphone, including messages that may show that plaintiff asked his friend to sign him up for the promotional text-message campaign.

The TCPA regulates persons or companies who make telephone calls using an automatic telephone dialing system (“ATDS”). 47 U.S.C. § 227(b). Specifically, the TCPA makes it unlawful for “any person . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The Federal Communications Commission (“FCC”), which is granted authority to issue declaratory rulings to implement the TCPA, and federal courts have issued decisions that treat text messages as “calls” under the TCPA. Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling and Order, 30 FCC Rcd. 7975 (2015), 2015 WL 4387780, at *37; see also Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 949 (9th Cir. 2009). Further, the FCC requires that senders obtain cellphone users’ prior express written consent before sending text messages to them. Id. at *15.

In this case, plaintiff alleged that Pizza Hut and the franchisees impermissibly obtained his cellphone number and sent him promotional text messages without his consent. Plaintiff seeks to recover statutory damages in the amount of $500 per text message sent in violation of the statute and $1,500 per text message that was sent in willful violation of the statute. There is no cap on the total amount of damages that may be awarded under the TCPA.

The case has been heavily litigated on both sides. For example, when plaintiff moved to certify the case as a class action, defendants made him an offer of judgment of $1,500. Based on defendants’ offer of judgment, the federal district court initially dismissed the case for lack of subject matter jurisdiction because plaintiff no longer had a stake in the litigation. Plaintiff appealed the decision, however, and the U.S. Court of Appeals for the Eleventh Circuit reversed and remanded the case to the district court. 

Since returning to the district court, defendants filed another motion to dismiss for failure to state a claim under the TCPA, but the court denied the motion as moot. Due to a series of stays and other extensions, defendants did not file an answer to the complaint until January 2016—nearly four years after the lawsuit started.

Once discovery started and the parties exchanged documents, defendants learned that plaintiff had failed to preserve text messages that are the basis of his lawsuit, as well as text messages he sent to his friend, which defendants suspect would show that plaintiff asked his friend to sign him up for the promotional text-message campaign. Plaintiff’s friend is now deceased, and a forensic evidence specialist could not recover the content of the text messages. Defendants moved for sanctions. In support of their motion, defendants submitted evidence of the text message flow demonstrating that plaintiff’s friend had subscribed plaintiff’s cellphone number to the promotional text message campaign. In the court’s December 5, 2016 order, the court found that even though the deleted text messages could not be restored or replaced through additional discovery, plaintiff’s duty to preserve the text messages as evidence had not been triggered at the time he destroyed them because he deleted the texts several months before he knew that he was going to sue Pizza Hut. Keim v. ADF Midatlantic, LLC, et al., No. 12-CV-80577, Dkt. No. 186 (Fla. Dec. 5, 2016).  It remains to be seen how plaintiff’s destruction of evidence will impact his claims going forward and whether it will serve as a basis for dismissing the case when defendants move for summary judgment. For now, however, defendants must continue to litigate plaintiff’s claims despite plaintiff’s destruction of this key evidence. 

King and Spalding recommends that any company that is planning on engaging in outbound marketing communications via text-message, voice-calls, or faxes, consult with an attorney to ensure that the communications comply with the TCPA and governing FCC declaratory rulings and orders, in order to reduce the risk of costly litigation like this case.