Yesterday, a complaint was filed in a Minnesota federal district court against Bernie 2020 Inc. (“the Sanders Campaign”), alleging that the Sanders Campaign transmitted automated text messages to mobile telephone numbers without the “prior express consent” of their recipients in violation of the Telephone Consumer Protection Act (“TCPA”).

The complaint alleges that at least two individuals who had not previously consented to receive text messages from the Sanders Campaign received automated messages encouraging them to click a link to view a campaign advertisement on YouTube.  The complaint states that automated text messages sent by or on behalf of political campaigns are not exempt from TCPA requirements, and it cites FCC guidance to this effect.  The complaint argues that class action certification is appropriate and seeks statutory damages of up to $1500 per unlawful message.

The complaint follows on the heels of a Memorandum Opinion and Order issued by another Minnesota federal district court on June 8, 2020, denying a motion to dismiss filed by Donald J. Trump for President, Inc. (“the Trump Campaign”) in a lawsuit alleging that the Trump Campaign transmitted unsolicited automated text messages to mobile telephone numbers in violation of the TCPA.  The allegations in that case were that the Trump Campaign sent text messages inviting recipients to attend a political rally and to click on a link for tickets or take some other action.

In the Memorandum Opinion and Order, the court found that the plaintiffs had sufficiently alleged an injury in fact, that a plausible connection existed between the Trump Campaign and the unlawful text messages, and that the TCPA violations as alleged were sufficient to survive the Trump Campaign’s motion to dismiss.  The Trump Campaign sought to compel arbitration vis-à-vis one of the plaintiffs on the grounds that he consented to receive text messages and to arbitrate any dispute, but the court denied this contention on the grounds that the Trump Campaign failed to carry its burden, noting the possibility that the plaintiff’s name and mobile telephone number could have been entered into the Trump Campaign’s database without his authorization and leaving these issues for discovery.