Here is the text of the Law360 story:
Facebook Hit With $5M Class Action Over Log-In Spam Texts
By Kurt Orzeck
March 3, 2015
Facebook Inc. was hit Tuesday in California federal court with a $5 million proposed class action accusing it of spamming cellphones and invading people’s privacy with unwanted automated text messages notifying them that their accounts have supposedly been logged into.
The suit — whose allegations are similar to those contained in recent complaints lodged against Domino’s Pizza LLC, American Eagle Outfitters Inc. and eBay Enterprise Marketing Solution Inc. — claims Facebook knowingly violated the Telephone Consumer Protection Act with the texts. The law prohibits automated calls to a cellphone without prior express consent by the person being called, unless it’s an emergency.
Facebook offers an “extra security feature” in which it sends log-in notifications to alert users when their account is accessed from a new device, according to the suit. But the text messages are allegedly sent, sometimes many times a day, to the cellphones of people who haven’t granted such authorization, who have asked that they stop or, even worse, who don’t even use Facebook.
While Facebook’s website has instructions on how to deactivate the log-in notification feature, they only discuss changing a Facebook user’s account settings, according to the putative class action. The company allegedly hasn’t explained how people who get the messages despite not having a Facebook account can stop the spam.
“Servicing over a billion Facebook accounts worldwide, Facebook’s automated systems are powerful and, when used improperly, capable of extreme invasions into the privacy of American consumers,” the complaint claims. “Facebook operates a sloppy system and in doing so shows complete disregard for the privacy of consumers.”
The instant suit comes after a California federal judge in October squashed a putative class action accusing gym chain Crunch San Diego LLC of spamming its members’ cellphones with promotional text messages, finding that the TCPA didn’t apply because the company hadn’t used an autodialer.
Lead plaintiff Noah Duguid, a Montana resident, said Facebook started texting his cellphone in late January of last year, even though he never gave his number to the company and never did business dealings with it.
After Duguid allegedly sent the defendant a detailed email in April 2014 complaining about the messages and asking that they stop, Facebook replied with an automatic email telling him to log on to its website to report the problematic content.
Duguid allegedly answered with a message saying, “A human needs to read this email and take action. Thank you!” But he received the same automated email.
The following October, the plaintiff allegedly responded to a Facebook text with the word “off,” after which the company replied, “Facebook texts are now off. Reply on to turn them back on.” Regardless, the company continued to text Duguid, according to his proposed class action.
The suit seeks to represent a class of individuals in the U.S. who didn’t give Facebook their cell number and received one or more of the accused texts within the four years before the filing of the complaint, and a class of individuals who received texts in the same time frame despite telling Facebook they didn’t want them. Plaintiff seeks at least $500 in damages for each violation of the TCPA.
Duguid filed a nearly identical version of the suit in late November in New York federal court, saying it had jurisdiction because Facebook, which is based in Menlo Park, California, has an office in New York City. But after the defendant argued the state has no personal jurisdiction over the company, the plaintiff voluntarily withdrew that suit on Tuesday.
Sergei Lemberg of Lemberg Law LLC, which is representing Duguid, told Law360 on Tuesday that they “look forward to vindicating our clients rights and the rights of those similarly situated.”
Representatives for Facebook didn’t immediately respond to requests for comment late Tuesday.
Duguid is represented by Trinette Kent, Sergei Lemberg and Stephen Taylor of Lemberg Law LLC.
Counsel information for Facebook wasn’t immediately available.
The case is Noah Duguid et al. v. Facebook Inc., case number 3:15-cv-00985, in the U.S. District Court for the Northern District of California.