We are always on the lookout for the latest trends in TCPA litigation here at TCPAWorld.com.

Obviously the biggest trend right now is a massive increase in TCPA class actions– up over 100% year over year.

Also seeing a BIG increase in revocation suits.

But one type of case that has ALWAYS been with us, albeit without much fanfare, are suits arising out of app publishers that push SMS messages to contacts in consumer phones.

To highlight just how not new this phenomenon is, it was a central issue in the FCC’s omnibus ruling way back in 2015.

There the Commission held companies like GroupMe (who?) that automatically synch to a users contact list at the push of a button and send messages inviting them to join the app were potentially liable for TCPA violations caused by their users. In those cases GroupMe was viewed as the “initiator” of the message as they were so intertwined with the message’s sending that they could be fairly said to have made it themselves.

On the other hand, companies like YouMail that merely invited users to find contacts of their own to send messages to were deemed to not be the initiator of the texts– even though the texts promoted the YouMail product–because the consumer had selected the contacts to send messages to.

Fast forward to today and we see Humans, Inc. has developed a new app called Flip.

I know nothing about Flip, or Humans, or apps generally, or humans generally– but I DO know TCPA. And it looks to me like Flip may have been violating the TCPA– at least as alleged in a new complaint.

A person named YAHNI PEDIGREE (not sure if that’s a boy’s name or a girl’s name) sued Humans alleging receipt of unwanted messages.

The first message readL

93 people in your community joined Flip today. Refer friends now
while invite rewards are up 48%. https://flip.shop/invite-coupons
Stop2Quit

Uh oh.

See that “refer friends” note suggests Humans is inviting trouble.

Now perhaps this app is set up like YouMail where the user has to select who to invite to join the little Flip community. Ok fine. But wait, there’s more.

Plaintiff allegedly responded “stop” to end the messages but another message came hot on its heels:

Flip: Want $35?
Share Flip with friends to claim! Tap to invite
https://l.flip.shop/a/J6xYi

Not good.

Couple of things could be going on here.

1. Plaintiff could just be lying (always an option);
2. Flip could just be really bad at honoring stop notifications; or
3. (And I think this is the one) Flip has multiple users hitting consumers with invite at the same time.

Now if it is 3. that is a serious problem. It is akin to a real estate brokerage allowing individual agents to message consumers and then not honoring stops by preventing all agents from sending messages to that consumer.

Because Flip is identified as the sender here, it has the responsibility to assure that all “friends” doing the referring are prevented from messaging the same consumer after they say stop. How that is done is not my problem– but it is their problem, and they need to solve it because if these allegations are true it is bad news bears town.

Anyhoo, very interesting one here.

Plaintiff has plead this ONLY as an internal DNC class case– which is very weak– as apparently he/she did not have a number on the national DNC list. Given the weakness of the claim Humans might skirt this issue in this one– but it should definitely wise up to revocation needs (again, if the claims are true.)