Underage sexting and texting while driving aren’t the only text-related legal battles that are being fought out there. Text messaging by advertisers to consumers is also highly regulated. Companies should only send text messages to those consumers who have given their prior express consent to such text messages (pursuant to a recent FCC order such consent must be in writing beginning next February.)  You should also check to make sure that consumers’ telephone numbers aren’t registered on any Do Not Call lists.

Late last month, the team here at Venable obtained final approval of a non-cash settlement of a class action suit relating to texting that had been brought against Payless ShoeSource, Inc.  Plaintiffs alleged that Payless had violated the Telephone Consumer Protection Act by sending promotional text messages without their prior express consent. The parties reached a settlement agreement, under which each class member will receive a $25 merchandise certificate redeemable at any Payless retail store in the United States. If less than $5 million of the value of the merchandise certificates end up getting redeemed, then Payless will make cy pres contributions to charities in the form of $15 merchandise certificates redeemable at any U.S. Payless store. Payless is responsible for ensuring that at least 85% of the value of the cy pres contribution is realized through redemption of these cy pres merchandise certificates.

Not only does the case demonstrate that non-cash settlements are still possible in the post-Class Action Fairness Act era, but it serves as a reminder that you can never be too careful when conducting a text message marketing campaign. Payless implemented a “double opt-in” texting program in October 2010, under which no person would receive promotional text messages unless they actively opted into the program, and then reconfirmed their decision, and it has proved very successful.  Now, if only there were a way for some of us over the age of 40 to understand what these texts mean.  B4N BBIAW with MTF.