Well, folks, it’s Blake Landis, one of Troutman Amin’s new recruits, to give you the latest. It looks like Jeg’s Automotive LLC has landed in legal trouble with a lawsuit filed by LawHQ. You know LawHQ, right? The innovative app aims to make trouble for the TCPA by allowing users to turn unwanted calls and texts into lawsuits with just a swipe. I’m not talking about Bumble, Hinge, or Tinder either (don’t ask me how I know those apps).

LawHQ apparently has 3 patents with the USPTO that I read last night regarding their “intelligent electronic signature platform”. Super interesting stuff on how the platform works. If you use their app according to their terms of service, you are basically agreeing to allow them to access the information that you have authorized them to access as part of using the app. The app and I quote “May“Include your call logs, contact list, calls, SMS or voicemails that the user reports as spam in the app, and I quote:”or” her System identified as spam. Does anyone have privacy concerns? Am I the only one who has “DO NOT REPLY” saved in their phone contacts? I digress. I assume the people who use the app are willing to give up everything to get these spammers to shell out some money.

Anyway, let’s move on, a new lawsuit, Scratches vs. Jeg’s Automotive LLC2:24CV04140, filed in the U.S. District Court, Western District of Missouri, alleges that the auto parts retailer went full throttle with the spam texts and simply ignored the plaintiff’s stop signs. Buckle up and let’s put this case to the test!

A Missouri man’s lawsuit alleges that Jeg’s Automotive violated the TCPA by sending 134 unsolicited commercial texts after he told them to hit the brakes. Under the TCPA, each text could result in $500 to $1,500 in damages. Here, they are seeking $1,500 for each violation because they claim it was KNOWLEDGE. See 47 USC § 227(b)(3) (authorizes an “action for compensation for actual monetary damages arising from such violation or for damages in the amount of $500 for each such violation, whichever is greater”) and provides that “the court shall, in its discretion, determine the amount of Grant of up to three times the available amount pursuant to subparagraph (B) of this paragraph” for intentionally or knowing violations).

But does Kratzer’s suitcase have enough horsepower to cope with that? Let’s take a look under the hood:

First of all, the TCPA requires companies to maintain internal opt-out lists and comply with opt-out requests. See 47 CFR § 64.1200(d). Missouri’s anti-spam law also prohibits the “knowing and intentional” sending of commercial calls to consumers requesting that they stop. See Mo. Rev. Stat. § 407.1076(4). The courts have clarified that text messages are considered calls for purposes of §227(b)(1)(A)(iii). See Campbell-Ewald Co. v. Gomez577 U.S. 153 (2016).

Here, Kratzer says he asked Jeg to stop his messages multiple times, but they kept pushing the throttle and the spam kept coming. Courts have already ruled that continuing to send unwanted texts after being asked to stop is a big TCPA no-no. If Kratzer’s allegations are true, Jeg could be facing a hefty bill. Better call Troutman Amin, LLP 😉.

But wait, there’s more! Thanks to the magic of the Wayback Machine (a digital archive of the World Wide Web), we can see what Jeg’s website looked like back then. And guess what? According to the Wayback Machine, Jeg’s website was first updated in March 2021 and includes this little gem:

“SIGN UP FOR TEXT MESSAGES AND SAVE! Sign up By subscribing to JEGS SMS, you agree to receive autodialed messages to the number used during registration. Message frequency may vary. Message and data rates may apply. Reply with “HELP” for help or “STOP” to log out.”

Interesting, right? So Jeg had apparently set up an opt-out mechanism. This begs the question: Was there really no opt-out feature for Kratzer’s SMS? Had he entered his phone number on the website to give his consent? Did he forget to send STOP or did it magically not send? Or did he wait until 134 SMS had accumulated before taking action? Inquisitive minds want to know!

I know what you’re thinking. The Wayback Machine? Isn’t that hearsay? Well, yes and no. See Gilfus v. McNally Capital, LLC8:18-cv-2941-CEH-CPT, 2022 US Dist. LEXIS 160511, 2022 WL 4079587, *3 (M.D. Fla. Sept. 6, 2022) (Honeywell, J.) (Printouts from the Wayback Machine must be certified by an affidavit from a person with personal knowledge of how the Wayback Machine works, such as an Internet Archive employee). While the Wayback Machine is not always admissible in court, it is still a great tool for lawyers (and other practitioners) to use in investigations and case building. Plus, it’s just fun to see what websites used to look like. You can play around with the site here: Wayback Machine. Anyone remember GeoCities?

If it turns out that Jeg’s didn’t have an internal DNC list and ignored multiple unsubscribe requests, that’s a lot of damage control. This should be a warning to companies that send out mass marketing SMS messages.

Of course, we’re still in the early stages of this case, so it’s too early to hand the checkered flag to Kratzer. Jeg’s hasn’t even filed a response yet. Once they do, we’ll see what defense they put forward. One thing is for sure: businesses and consumers will be keeping an eye on this case as it goes through the legal twists and turns that lie ahead. We’ll keep you updated as it moves through the courts.

See you soon!