by Leonard A. Bellavia, Esq.


The ubiquity of smartphones and other feature-rich mobile phones has fueled widespread adoption of text messaging as a popular way for individuals to communicate with one another.  As an interesting settled case illustrates, businesses that improperly use text messaging to promote their products and services expose themselves to substantial risk.  In this case, that risk cost the business $47 million dollars.

Plaintiffs, Customers of Jiffy Lube franchisee Heartland Automotive Services, Inc. (“Heartland”) initiated a class action lawsuit against Heartland when the business sent certain text messages promoting service specials to the Plaintiffs.  The complaint alleged that Heartland violated the Telephone Consumer Protection Act (or “TCPA”), when, among other things, the business sent spam text messages to the plaintiffs’ mobile phones without the Plaintiffs’ consent.  TCPA imposes substantial penalties when businesses or individuals send promotional text messages without the recipient’s consent.  Fines range from $500 to $1500 per violation and include recovery of Plaintiffs’ attorney’s fees when they can show the aggravating party acted willfully or intentionally.  While Heartland’s vendor administered the promotion leading to this action, Heartland was ultimately responsible for the vendor’s conduct.

There are several lessons businesses can learn from this recent lawsuit.  First, you should always remember that the conduct of your business’s vendors can impose liability on your company if they violate the law.  Second, this lawsuit is an excellent reminder of why it is important to implement processes that address all of the methods of communication with customers your business utilizes.  Remember that spamming isn’t confined to email communications.  Don’t let your staff’s comfort with using text messaging as a means of communication in their personal lives thwart your dealership’s policies against spamming.  Sound processes that address text message spamming include the following:

  • Training your employees on permissible means of soliciting customers and what to do when customers allege your dealership spammed them
  • Obtain prior written consent from your consumers before commencing solicitations by email or text messages
  • Provide ways for customers to opt-out from receiving future solicitations from the dealership.
  • Consider centralizing communication with consumers via text messaging. Several platforms exist that aid businesses in lawfully soliciting consumers with text messages.  If you opt to use such tools, restrict access to authorized individuals and monitor usage to maintain employee compliance with your processes

If you have questions about how to ensure that your customer solicitations are compliant, please call us at 631-224-7000.