Shooting The Messenger. And His Marketing Firm

According to a recent decision from a federal court in California, a company that hires a marketing firm to send commercial text messages cannot avoid liability under the Telephone Consumer Protection Act (“TCPA”) by throwing the marketing firm under the bus. Among other things, the TCPA prohibits the use of an automated telephone dialing system to make any call (without prior express consent) to any telephone number assigned to a cellular telephone service. “Call” includes a text message. In this case, Heartland Automotive Services, Inc., a Jiffy Lube franchise hired a marketing firm called TextMarks to run its marketing campaign. That campaign included sending text messages that offered a discount on Jiffy Lube services. According to the complaint, TextMarks sent text messages “en masse through the use of a sort code and without prior express consent of the plaintiffs.” Heartland asked the court to dismiss the complaint against it, on the ground that it never sent a text message. But the court wasn’t buying it. It reached the fairly simple conclusion that “Heartland should not be allowed to avoid TCPA liability merely because it hired a different firm to send advertisements to its customers.” In other words, liability doesn’t depend on who physically pushes the send button. The lesson here, whether you’re Heartland or TextMarks, is to lay out in the contract who is responsible for what, and who indemnifies who in the event of this kind of liability. It may not stop you from being thrown under the metaphorical bus, but at least you’ll see it coming.