Plaintiff George Pappas filed a class action complaint against Mypizza Technologies (also known as Slice), an online and mobile pizza ordering software company that operates the Slice app, for violating the Telephone Consumer Protection Act of 1991 (TCPA) on Wednesday in the Southern District of New York.
Specifically, the plaintiff alleged that the defendant sent “unsolicited automated text messages to the cellular telephones of Plaintiff and Class members, including text messages to consumers registered on the National Do Not Call registry” in violation of the TCPA and the Junk Fax Prevention Act of 2005 (JFPA) and other Federal Communications Commission (FCC) regulations.
The plaintiff proffered that during a six-month period the defendant sent at least three unauthorized text messages to his cell phone “using an automatic telephone dialing system (‘ATDS’ or ‘auto-dialers’) for the purpose of soliciting business from Plaintiff.” The TCPA regulates auto-dialers, it “prohibits the use of auto-dialers to make any call to a cellular phone number in the absence of an emergency or the prior express consent of the person being called.” The FCC determined that text messages qualify as “calls” under the TCPA. The only exemptions from this rule are tax-exempt nonprofit organizations or health care messages, otherwise, an auto-dialer that contains an advertisement or is telemarketing “must have prior express written consent” to comply with the TCPA. Consequently, the defendants do not qualify for this exemption. Telemarketers are also prohibited from reaching out to numbers on the National Do Not Call Registry, where consumers exclude themselves from telemarketing unless they agree in written consent to the call.
The plaintiff, the owner of a sports bar and grill, claimed that on February 12,2020, he received a text message on his cell phone “suggesting that he should add Valentine’s Day Specials, like heart shaped pizzas, to his menu and requested Plaintiff to email Defendant.” In March, he received a text about a “March Madness” deal and in June he received a text about the defendant’s summer promotion. Plaintiff Pappas stated that each of the text messages were similar in nature and provided promotional content for the defendant’s products; he added that the texts were “impersonal in nature and the message in each utilizes boilerplate language.” The plaintiff believed these texts were sent to numerous recipients. Further, the plaintiff added that when he called the number that the text messages were sent, “an automated messaging service answers instructing the caller to select among various options.” In order to speak to a live person, he must select an option. Consequently, he believed an auto-dialer was used to send these messages. However, plaintiff Pappas claimed that he never gave the defendant his cell phone number or gave consent to be contacted by the defendant and that he is registered on the National Do Not Call Registry as of May 8, 2009.
The defendant is accused of violating the TCPA, including calling numbers on the National Do Not Call Registry. The plaintiff also alleged that this was willful and knowing violation.
The plaintiff has sought for class action certification and for the plaintiff and his counsel to represent the class; an award for actual monetary loss; an award for treble damages; an award for prejudgment interest; injunctive relief; an award for costs and fees; and other relief as determined by the court.
The plaintiff is represented by Bellin & Associates LLC and Anderson + Wanca.
