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Consumer fraud class action claims telephone call violations

One practice that is almost universally disapproved of by consumers is the use of autodial marketing pitches received on their cellphones and by text messages from companies to whom consent was never given. The federal Telephone Consumer Protection Act (TCPA) prohibits advertising campaigns to be sent to cellular telephone numbers, including as text messages, unless the consumer has provided unambiguous prior written consent. This protection against consumer fraud and harassment has been effective in California and other states since Oct. 2013.

The law also provides for a consumer to register his or her telephone numbers on a National Do Not Call Registry. Two consumers recently filed a federal class action complaint against 24 Hour Fitness in a federal district court located in California for violation of the TCPA and the Do Not Call Registry. The lawsuit alleges that the fitness company sent text messages and automated phone calls to the plaintiffs despite that they did not give their express prior written approval.

At least one of the plaintiffs had also registered his number with the Do Not Call Registry and received calls in violation of that law. The consumers complain that they suffered violations against their right to privacy and also that they endured the "annoyance and aggravation" that is a necessary part of such unsolicited telemarketing calls.  A violation of the TCPA provides a recovery of the greater of either actual damages or $500 statutory damages for each violation.

The law requires the defendant to prove that the plaintiff signed prior written consent to be called. The law also provides treble damages that may be awarded in the discretion of the court. The case is being prosecuted in the U.S. District Court for the Northern District of California. In addition to the violations of law that are specified, the allegations also indicate consumer fraud infractions in the manner in which the company dealt with its own customers, which includes the plaintiffs.

Source:, "24 Hour Fitness Faces Telemarketing Class-Action Lawsuit", Pamela Kufahl, Dec. 23, 2015

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