Brown v. Rita’s Water Ice Franchise Company


Brown vs. Rita’s Water Ice Franchise Company (U.S. District Court, Eastern District of Pennsylvania, Case No. 2:15-cv-03509(JTS))

In a class action complaint, Lemberg Law is representing Sherry Brown and Ericka Newby, who are suing Rita’s Water Ice Franchise Company for alleged violations of the federal Telephone Consumer Protection Act (TCPA). The complaint alleges that Rita’s Water Ice sent spam text messages to Brown’s and Newby’s cell phones.

Rita’s “Cool Alerts” text messages state, essentially uniformly, “Ur fav flavors avail 2day at Ritas of [location] [Flavor] is available today! Reply STOP 2 cancel.” But, the complaint says, Rita’s didn’t tell consumers the consequences of providing Rita’s with their cell phone numbers, namely agreeing to receive automated text messages.

Moreover, the complaint alleges that Rita’s wholly disregards consumers’ requests for Cool Alerts text messages to stop, and continues to send consumers its Cool Alerts even after consumers text “STOP,” as instructed by the Cool Alerts messages.

The complaint notes that Rita’s doesn’t provide an online option for consumers to remove their numbers, and that the Cool Alerts are sent using a fully automated system.

The lawsuit cites caselaw and the Federal Communications Commission (FCC) to establish that text messages qualify as “calls” under the TCPA. It also reviews FCC rules requiring telemarketers to provide consumers with a “conspicuous disclosure” of providing consent.

Sherry Brown started receiving Rita’s text messages in February, and repeatedly responded “STOP,” but Rita’s continued sending the unwanted text messages. Brown emailed Rita’s in an attempt to get the text messages to stop, but that didn’t help. The lawsuit makes the case that Brown never consented to receive automated text messages, that the messages constituted “telemarketing,” and that the text messages were made with an automatic telephone dialing system (ATDS).

Ericka Newby signed up for Rita’s text message alerts on the company’s website in September 2014, but the website didn’t include a clear disclosure about the consequences of her consent. In October 2014, Newby wanted to stop the messages and replied “STOP,” but Rita’s continued to send dozens of text messages.

The complaint proposes the following classes: People in the U.S. who signed up for Rita’s “Cool Alerts” and were shown the same disclosure language that was displayed to Ericka Newby and who received one or more automated telemarketing text messages from June 22, 2011 to October 7, 2015; and people in the U.S. who, from June 22, 2011 to October 7, 2015, received at least one cell phone text message from Rita’s, replied “Stop” to the text message, and then received at least one additional text message to the same phone number.

Update: Final approval papers have been submitted to the court.

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