Like many other Buffalo expatriates who have moved far away from Ralph Wilson Stadium, Jerry Wojcik wanted to stay connected to his hometown Bills.
So earlier this season, the Florida resident signed up for a Bills program that sends fans text messages.
Trouble is, he says, the text alerts became too frequent. So now he and his attorneys are suing the Bills, in the form of a class-action lawsuit, complaining that the team sent him a few extra messages.
In their legal papers, his attorneys claim that after he signed up for a Bills program that pledged to send him no more than five text alerts per week, he instead received six messages one week and seven a few weeks later.
That’s a total of three extra texts, over several weeks.
Some people clearly would label this a frivolous lawsuit.
“I’m just appalled,” a Bills fan with personal knowledge of the case said, before turning sarcastic. “Obviously, he was grievously harmed and is deserving of a pile of season-ticket money.”
Buffalo attorney Thomas H. Burton, who has served as both a plaintiffs’ and defense attorney, sounded concerns about the effect such lawsuits have on public perceptions of the legal system.
“I like to think that the plaintiff attorneys, at least around here, bring these claims when someone has a legitimate and meaningful injury and real damages,” Burton said. “My sense is that as long as you stick to the good substantive cases, citizens and jurors don’t have a bad view of the system.
“I’m not sure suing over text messages fits the bill.”
Wojcik’s attorneys, both also from Western New York, have a totally different view.
Text message spam costs Americans hundreds of millions of dollars per year, attorneys Scott D. Owens and James S. Giardina stated, in written replies to email questions. They also cited two spam-settlement cases of about $20 million and $47 million.
“Furthermore, a ‘frivolous lawsuit’ is one that has little chance of succeeding in court,” the two attorneys stated. “This case is exactly the opposite. We have a defendant who appears to have violated a federal law on multiple occasions, affecting thousands of people. Whether you are a fan of the Bills or not, no one should spam their customers. The [Telephone Consumer Protection Act] has been on the books for more than 20 years. The Bills either knew or should have known that they were breaking the law.”
But attorney Michael Schiavone, of Lipsitz Green Scime Cambria, who’s representing the Bills, pointed out that the intent of that law was to protect consumers against unwanted and unsolicited phone calls; the law later was extended to text messages.
“Clearly, that’s not what happened here,” Schiavone said, referring to the belief that Wojcik signed up for the mobile alerts.
Owens and Giardina say they don’t know how large the class will be for this class-action lawsuit, but their research suggests similar pro sports teams have mobile-marketing databases ranging anywhere from 4,000 to 93,000 subscribers.
While the attorneys cited only two occasions when the Bills sent more than five messages per week, they say the exact number of violations will be found later.
The lawsuit has a decidedly local flavor. Wojcik is a native Western New Yorker in his mid-30s who moved to Tampa Bay in 2001, and both his attorneys also have local roots. Owens is a Williamsville East and University at Buffalo graduate, while Giardina graduated from Sweet Home High School and UB Law School. Each spends a substantial part of his practice on Telephone Consumer Protection Act cases.
In the court papers, filed in U.S. District Court in the Middle District of Florida, Wojcik and his attorneys claim that on Sept. 12, while visiting the team’s website, he read an ad about receiving mobile text messages from the Bills.
“Get up to the minute news and team alerts sent directly to your phone!” the program’s terms and conditions state, according to court papers. “You will be opted in to receive 3-5 messages per week for a period of 12 months.”
After Wojcik subscribed, the Bills texted him a message confirming his participation. In his second full week after signing up, from Sept. 23-29, Wojcik received six text messages from the Bills, the court papers state. Several weeks later, from Oct. 14-20, he received seven.
Those excessive texts, auto-dialed to all the subscribers, were made without their consent and in violation of the Telephone Consumer Protection Act, the lawsuit claims.
The suit seeks statutory damages of $500 per excessive call for negligent violations and up to $1,500 per call for willful violations. Those amounts could be multiplied by the thousands of subscribers receiving the excessive texts.
The complaint, though, does not specify the claimed harm caused by the extra messages.
And the court papers don’t explain why, if Wojcik were harmed by the extra message late in September, he didn’t drop out of the program.
Wojcik could not be reached to comment.
Burton, the attorney who’s been on both the plaintiff and defense sides, came up with his own resolution for the dispute:
“Maybe the Bills should just send this guy a bucket of chicken wings and a case of Labatt’s beer and call the whole thing even.”