For all of the evil that texting has wrought—cramped thumbs, an LOLified lexicon, sexting—it’s got at least one very big thing going for it: no spam. And for that we can thank the Ninth Circuit Court of Appeals, which deemed your text message inbox a digital no-man’s-land for marketers. And now we can thank West Seattle’s Maria Agne, who’s doing her best to make sure businesses think twice about trying to find loopholes in the ruling.
Last November, after two and a half years of brief filing and barb slinging, Agne’s attorneys convinced a U.S. District Court judge to certify her class action lawsuit that accuses Papa John’s Pizza, third largest takeout and delivery pizza chain in the world, of spamming its customers with hundreds of thousands of text message advertisements in late 2009 and early 2010. And she wants the cheap-pizza purveyor to fork over $250 million for the unwanted delivery—an award that would make her suit the biggest filed under the Telephone Consumer Protection Act.
Agne—along with two other West Seattle residents, Jerrod and Erin Chutich—claims she can show that the Louisville, Kentucky–based chain is responsible for sending 500,000 unsolicited texts and that some customers received as many as 15 at a time. But the suit started with three messages Agne received in April 2010, offering a large pizza with two toppings and a two-liter soda for $11. And those texts almost didn’t go out at all.
Agne says Papa John’s is responsible for sending 500,000 unsolicited texts.
In fall 2009 an Oregon startup called OnTime4U was rolling out a text advertising service after its first idea—texting subscribers to remind them when it was time to take their medicine—failed to find an audience. Its first paying client was GW Dining, a company in Redmond that operates almost 40 Papa John’s stores in the Seattle, Kitsap Peninsula, and Portland areas. For $900, according to a former OnTime4U employee, the startup spammed 30,000 of GW Dining’s customers that November. Word of the service spread among other franchise owners, and by February 2010 pizza lovers everywhere from California and Idaho to North Dakota and Illinois were getting buzzed with offers day and night. Ironically, though, by then GW Dining had discontinued the texting program because it failed to yield much business. But a manager higher up the Papa John’s food chain encouraged GW to blast its customers with another round of texts. And that April, GW sent the fateful messages to Maria Agne (along with thousands of other people) that set Papa John’s legal troubles in motion.
The pizza company’s corporate office warned franchise owners in April 2010 that the texting practice was illegal and directed them to stop. But the fact that those texts went out in the first place, argues Donald Heyrich, Agne’s lawyer, is proof that a (figurative) message had to be sent to any other marketer that might try to skirt the law. Otherwise, he says, “our text message inboxes would quickly be stuffed with spam and our phone would be buzzing and beeping all the time.” The only hitch for any Papa John’s customers hoping to cash in on the potentially supersize payout: The pizza maker appealed last December, meaning it could still be years before the suit is settled. Even in the digital world, you can’t always expect instant gratification.
Published: February 2013