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App Maker Faces Suit Over Unsolicited Text Messages: TCPA Violation

May 23, 2017
Shamis & Gentile, P.A.
Unsolicited Text Messages: TCPA Violation

Shamis & Gentile, P.A. Spam Text Message Lawyer In The News

App Maker Faces Suit Over Texts To Users’ Contacts – TCPA Violation

Law360, New York (May 15, 2017, 3:13 PM EDT) — Everalbum Inc. has been hit with a proposed class action in Florida federal court alleging that the application developer tricks users of its photo sharing and backup app into sharing their contacts and then sends those people telemarketing texts.

Domenic Aloise’s Thursday complaint alleges that the company violated the Telephone Consumer Protection Act (TCPA) by duping users of its Ever app into sharing their contacts by promising extended storage and proceeding to send an automatic text message to each of the user’s contacts, only informing the individual after the fact.

“Defendant’s text messages caused plaintiff and the class members actual harm including, but not limited to, invasion of their personal privacy, aggravation, nuisance and disruption in their daily lives, reduction in cellular telephone battery life, messaging charges, and loss of use of their cellular telephones,” the complaint says.

The suit stems from Everalbum’s Ever app, which lets users transfer photos from their mobile devices to the company’s cloud storage service and share the images with other users. Millions of people throughout the United States have downloaded the app, according to the complaint.

During the signup process, users are offered extended storage in exchange for allowing access to all of the telephone numbers on their contact lists, the suit says.

If a user agrees to give Ever access, the app automatically pre-selects all of his or her contacts but doesn’t clearly disclose that it is about to send an automatic text message to everyone, according to the complaint. Users don’t learn until after Ever sends the texts using an automatic telephone dialing system that the messages have been sent, the suit alleges.

Everalbum admits on its website that it sends these text messages, noting that when users invite others to join the app using the referral page, “we send a one-time text message on your behalf to that referral,” according to the complaint.

These texts are sent from so-called spoofed numbers, which means they are false and can’t be called back, and are intended to get others to pay for Ever’s premium services, the suit says. The impersonal nature of these messages, combined with the large number sent, indicates that Everalbum uses an autodialer, the complaint alleges.

Numerous app users and text recipients have written complaints about this practice on Apple’s App Store and Google’s Android Play Store, complaining about the misuse of contacts, the nuisance of getting an unwanted message and the invasion of privacy, according to the complaint.

Aloise himself received two identical texts from Everalbum in August and September encouraging him to download the app, he alleges. He has never used the app, never provided his phone number and never consented to receive automated messages from Everalbum, the consumer says.

As a result, he suffered actual harm, including invasion of privacy and annoyance, because of the texts and Everalbum’s deceptive statement that a user suggested “you check out your photos on Ever,” which led him to believe photos of him were being displayed on the app without his permission, according to the complaint.

He seeks to represent all people living in the United States who received autodialed, telemarketing calls or text messages from Everalbum to their cellphones within the last four years without providing prior express consent.

The suit seeks injunctive relief and statutory damages of $500 for each unsolicited text made in negligent violation of the TCPA or $1,500 for every call made in willful violation of the act.

Andrew J. Shamis of Shamis & Gentile PA, who represents the consumer, told Law360 in a Friday email that his firm looks forward to representing Aloise in the matter.

Everalbum didn’t return a request for comment.

Aloise is represented by Andrew J. Shamis of Shamis & Gentile PA.

Counsel information for Everalbum wasn’t immediately available Monday.

The suit is Aloise v. Everalbum Inc., suit number 6:17-cv-00837, in the U.S. District Court for the Middle District of Florida.

Article edited  by Orlando Lorenzo of 360 Law

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