Law360: Jackson Hewitt TCPA Suit

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Here is the text of the Law360 story:

Jackson Hewitt Can’t Escape Ill. Text-Spam Suit

By Steven Trader
January 26, 2017

Jackson Hewitt was unable to shake claims it violated the Telephone Consumer Protection Act by sending daily account update text messages without consent using an automated system, after an Illinois federal judge Wednesday found the allegation sufficiently pled.

Michigan resident Steve Yankee can proceed on his allegation the tax preparation service texted him daily account updates despite not even having an account with the company, and asking the messages to stop as well, U.S. District Judge Philip Reinhard concluded, denying Jackson Hewitt’s motion to dismiss for lack of sufficient proof it used an automated telephone dialing system in violation of the TCPA.

“Daily text messages each with the identical impersonal content received over the course of a month allows the inference that an ATDS was used,” Judge Reinhold wrote. “Yankee’s allegations plausibly suggest he has a right to relief above a speculative level. He has raised a reasonable expectation that discovery will reveal evidence supporting his allegations.”

Yankee first joined the proposed nationwide class action in July, after Illinois resident Phil Hollingsworth had accused Jackson Hewitt, along with American Express Co. and Restaurant.com Inc., of sending unauthorized texts that cross-advertised their services and offered coupons despite his request the messages be stopped.

Yankee’s claim differed slightly in that he did not receive any type of promotional texts, but rather daily account updates from the tax preparer despite not having an account and never providing them his phone number.

Hollingsworth’s claim hit a setback though in mid-November, when Judge Reinhard concluded that an arbitration provision contained in an assisted-refund agreement he signed with his bank — which led him to Jackson-Hewitt — meant an arbitrator needed to decide whether his TCPA claim falls under that arbitration provision.

In December, Jackson Hewitt sought to scratch Yankee’s claim as well, saying the man’s “boilerplate allegations” did nothing more than guess or assume an ATDS was used to sent the texts, rather than show specifics facts.

On Wednesday, Judge Reinhard pointed out that the case law in his district was mixed, with some courts finding that merely reciting the statutory definition of an ATDS is enough, while others have said that additional facts of ADTS use are needed.

Even assuming the more stringent of those standards applies though, Yankee’s complaint still met the requirement, the judge concluded, because he alleged to be receiving them daily and described them as generic and impersonal in nature, which leads to a reasonable inference an ATDS was used.

“We are pleased with the decision and look forward to prosecuting the case on behalf of Mr. Yankee and the entire class,” Sergei Lemberg of Lemberg Law, representing Yankee, told Law360 Thursday.

Counsel for Jackson Hewitt did not immediately return a request for comment.

Yankee is represented by Stephen Taylor and Sergei Lemberg of Lemberg Law LLC.

Jackson Hewitt is represented by Martin W. Jaszczuk and Joseph E. Hopkins of Locke Lord LLP.

The suit is Hollingsworth vs. Jackson Hewitt Inc. et al., case number 3:16-cv-50059, in the U.S. District Court for the Northern District of Illinois.

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