Greetings TCPAWorld!

Lip gloss is poppin’, lip gloss is cool—but late-night marketing texts? Those might land them in court. Listen up, beauty lovers and TCPA watchers—Colourpop Cosmetics is facing a serious touch-up in court over its late-night marketing tactics. A new class action lawsuit filed in the U.S. District Court for the Middle District of Florida claims the company violated federal law by blasting promotional text messages well past bedtime. See Trushel v. Colourpop Cosmetics, LLC, No. 8:25-CV-00282 (M.D. Fla. filed Feb. 4, 2025).

We all know the thrill of a midnight flash sale—one second, you’re winding down for the night, and the next, you’re frantically adding items to your cart before the “FINAL HOURS!” timer runs out. Amazon Prime Day flashbacks, anyone? But there’s a fine line between FOMO marketing and federal law violations, and according to this lawsuit, Colourpop might have crossed it.

So here is the deal. Plaintiff alleges she received multiple late-night texts from Colourpop, including a “$2 Lips” deal and other Cyber Sale alerts sent around 10 PM. That might seem harmless, but here’s the problem—the Telephone Consumer Protection Act (“TCPA”) explicitly bans marketing calls and texts before 8 AM or after 9 PM (local time). See 47 C.F.R. § 64.1200(c)(1)).

And Colourpop didn’t just allegedly text Plaintiff—it may have done this to thousands of customers across the U.S. over the last four years. That’s why this lawsuit isn’t just about one person’s disrupted sleep cycle—it’s a potential nationwide class action covering anyone in the U.S. who received similar late-night texts from Colourpop. If Colourpop loses, the financial impact could be major. The TCPA allows for damages of $500 per text—which already stings—but if Colourpop knowingly ignored the law? That jumps to $1,500 per message.

The lawsuit alleges this wasn’t just an innocent mistake. The Complaint asserts that Colourpop’s late-night texts were part of a broader telemarketing strategy—meaning these weren’t one-off messages but part of a deliberate campaign. That distinction matters because it could increase the likelihood that the Court finds Colourpop acted willfully, which raises the potential damages. And here’s another issue—Plaintiff never gave consent to receive messages outside of legal hours.

Interestingly, this isn’t Plaintiff’s first TCPA lawsuit. The same day, Plaintiff sued The Children’s Place, Inc. in the same court, alleging nearly identical violations. See Trushel v. The Children’s Place, Inc., No. 8:25-CV-00284 (M.D. Fla. filed Feb. 4, 2025). According to that Complaint, Plaintiff received late-night marketing texts from The Children’s Place around 10:35 PM and 10:36 PM on separate occasions, and the lawsuit similarly seeks damages under the TCPA’s statutory framework. With two lawsuits filed back-to-back, it raises the question—are these brands engaging in widespread non-compliance, or are plaintiffs becoming increasingly aware of TCPA violations and actively monitoring for missteps? Given the financial penalties, could some consumers opt for promotional texts and wait for a company to slip up with an eye toward litigation? One misstep in your SMS marketing could be more than just a blemish—it could stain your brand. No pun intended.

What makes this case particularly interesting is how Colourpop’s Terms of Use comes into play. I did some digging into their website, and their terms contain several provisions: 1) a mandatory arbitration clause requiring disputes to be resolved through JAMS arbitration in Los Angeles County, California; 2) a 60-day notice and informal resolution period before any legal action; 3) a class action waiver requiring all claims to be brought individually; and 4) detailed SMS marketing consent provisions that are notably silent on message timing.

But here’s where things get even more complicated for Colourpop—its SMS Terms of Use might work against it. According to its official policy, Colourpop requires users to “affirmatively opt-in” to receive marketing texts and states that “consent is not required to make any purchase.” That’s standard, but the policy doesn’t say anything about notifying users that messages may arrive at prohibited hours. In other words, just because someone opted in doesn’t mean they agreed to get texts at 10 PM.

What is more, the Terms include a “Class Action Waiver,” stating that customers agree to resolve disputes through individual arbitration rather than class actions. However, TCPA cases have successfully challenged these waivers, particularly when courts find them unconscionable or conflicting with consumer protection policies. But let’s be clear—each case has its own legal and factual workup, and enforcing arbitration clauses isn’t a one-size-fits-all. Have you ever read Troutman Amin’s motions to compel arbitration? They are top-notch, crafted with precision, and built to withstand scrutiny. Whether enforcing a waiver or strategically defending against class certification, our team knows how to keep businesses out of costly courtroom battles and in control of their legal strategy. You don’t want to be left covering up legal blemishes—you want a flawless finish. (And yes, my pun game is getting better.)

This lawsuit isn’t just about Colourpop—it’s a reminder to every brand using SMS marketing that timing isn’t just a courtesy; it’s the law. Translation? If your brand hits “send” on promotional texts after 9 PM, you might wake up to a class action lawsuit. The old saying goes, “Nothing good happens after midnight,” but for businesses, it’s starting to look like “nothing safe happens after 9 PM.”

As always,

Keep it legal, keep it smart, and stay ahead of the game.

Talk soon!