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Text-Spam Class Action Against Path Proceeds in Illinois

The US Seventh Circuit Court of Appeals recently flashed the green light on a pending lawsuit filed by angry consumers against Path Messaging Service. After a failed move to dismiss the claims against it, Path will not be able to appeal the decision to let the class-action case against the messaging system proceed.

Consumer Kevin Sterk, the plaintiff against Path, alleged he received an unsolicited text message from Path. The alleged text message stated another person — Path user Elizabeth Howell — wanted to show Sterk photos on the service. The text also contained a link to Path's social networking site, encouraging Sterk to register and join Path. Sterk asserts he was asked to “submit personal information and register an account for Path’s services.” Sterk argued that the message from Path violated the Telephone Consumer Protection Act.

While Sterk was the first consumer to bring a class action lawsuit against Path back in 2013, he has not been alone. By October 2013, two other class action lawsuits were filed against Path for the same unwanted spam text messaging. San Diego resident Karen Montes asserted Path sent a similar message to her on her cell phone. Similar to Kevin Sterk's message, the message said a woman named Paris Tobin wanted to share pictures with Montes on the social networking site.

Social networking tool

Path, which launched in November, 2010, is a popular messaging service utilized by Android. Path advertises itself as a "one-to-one and one-to-many private messages and sharing" website. A major Android app and social networking tool, Path enables photo-sharing and messaging services for mobile devices. This messaging service allows users to share "with their close friends and family" up to a total of 150 contacts.

However, consumers are receiving an abundance of unwanted text messages, often finding themselves in embarrassing situations because of the messaging service. Path's messaging service is allegedly responsible for sending bulk SMS messages to users' entire phone contacts list. These pesky notifications ask the recipients to sign up for Path themselves, encouraging new user sign-up by telling the recipients someone has photos waiting for them on Path.

This text-spam tactic that Path is alleged to practice is not new. One unhappy user commented on Phandroid's site over a year ago, explaining the awkward scenario caused by Path messaging: "Word began spreading a few days ago after Path seemingly wigged out on a few users, sending mass SMS messages to everyone in their phone book — ex girlfriends, tire shops, grandmas, etc. — notifying them that the sender had “photos” for them waiting on Path. Not the kind of thing you would want sent to your buddy’s wife on a Friday night.”

Automated text messages

The decision made by the Seventh Circuit Court of Appeals affirms a prior ruling made by the U.S. District Court in the Northern District of Illinois. Previously, Judge Samuel Der-Yeghiayan allowed Illinois state resident Kevin Sterk to pursue his allegations that Path violated the federal Telephone Consumer Protection Act. The Telephone Consumer Protection Act prohibits companies from using "automated dialers" to send users text message ads. Automated dialers are electronic devices (or software) that automatically dial telephone numbers.

Path argued the case should not be allowed to proceed, claiming its messaging system does not use automated dialers. Path asserted its messaging system only sends SMS messages to people whose phone numbers were provided by Path users-- but the court was not receptive to this argument. According to Mobile Marketing Watch, "Path believes the court decision marks a 'dramatic expansion' of the federal telemarketing law and opens up new legal risks for any firm that sends text messages."

It appears Path is not the only social media company spamming users to grow membership. Media Post says, “Lyft [is also] facing a potential class-action lawsuit for allegedly running an 'aggressive marketing campaign' that sends people unwanted SMS messages. The Lyft suit dates back to April, 2014, and involves Washington state resident Kenneth Wright, who sued Lyft for allegedly violating the Telephone Consumer Protection Act by engaging in an “aggressive marketing campaign.” Wright asserted Lyft's marketing methods involved sending him an unwanted SMS message, much like the grievances of Sterk and Montes.

Invite friends for $25

According to Media Post, "His lawsuit focuses on Lyft's “invite friends” program, which allows Lyft users to send SMS messages to all of their contacts, inviting them to sign up for the service. Lyft promises to pay people up to $25 for each contact who accepts the invitation and uses the service, according to Wright."

Lyft, much like Path in their case against Sterk, has argued their messaging systems should not be classified as automated dialers because automated dialers must themselves generate phone numbers. Lyft and Path continue to argue their messaging systems of merely sending messages to phone numbers from contact lists provided by people (Lyft and Path users) should not be considered automated dialers.

"Federal judges confronting the same issue in other cases appear to be divided on the definition of automated dialers, and appellate courts haven't yet weighed in," wrote Wendy Davis. The federal judge presiding over the Lyft case has recently suspended the case to allow the FCC to offer guidance on whether the invitational text messages violate any anti-spam law.

As the Path case proceeds in Illinois, the legal system will have to balance the rights of text messaging service companies and consumers in determining what is appropriate and what is considered unwanted and undesirable.

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