There is something magical about shopping during the holidays. Those who favor the bustle of malls will enjoy elaborate window displays and the familiar sights and sounds of the season. And those who favor shopping while snug in their beds will use websites and apps to have gifts wrapped and shipped to their homes or convenient brick-and-mortar locations.
But lurking among those happy holiday shoppers is a small but growing number of professional plaintiffs with visions of dollar signs dancing in their heads. Hunting for lawsuits rather than bargains, they will concoct claims under the Telephone Consumer Protection Act (“TCPA”) by enrolling in text message programs and then purporting to revoke that consent in ways that are deliberately designed to evade systems that recognize and register legitimate attempts to opt out. In doing so, these modern day Grinches threaten not only the retailers who are exposed to potentially massive aggregate liability, but also the consumers who have come to rely on their text message programs for information about sales, promotions, and other benefits.