Judge Denies Defendants Motion to Dismiss in TCPA Case Against NYSC

Back in May of 2018 Fitapelli & Schaffer, LLP along with Terrell Marshall Law Group PLLC filed a class action lawsuit against New York Sports Club (“NYSC”) for allegedly violating the Telephone Consumer Protection Act (TCPA) by sending text messages to recipients’ cellular phones without their prior written consent. NYSC owns and operates health and fitness facilities in New York, Boston, Washington, D.C. and Philadelphia and claim to have “the largest gym network in the Northeast.” The TCPA makes it unlawful to make calls, send text messages, or send faxes to a person or business, for commercial reasons, without that person’s express written consent. Each person receiving an unlawful call, text message, or fax, may be entitled to receive a statutory penalty between $500 and $1,500 for each violation.

The class action lawsuit asserted TCPA violations on behalf of the Plaintiff and a nationwide class of customers who received promotional text messages on their cell phones from NYSC. In order to properly plead a TCPA claim, the Plaintiff had to allege the following: (1) that the defendant called/sent a text to a cellular telephone number, (2) used an automatic telephone dialing system (ATDS) that has the capability to generate and dial such numbers and (3) did so with the recipient’s prior consent. In response to the lawsuit, NYSC moved to dismiss the case because it claimed they did not use an ATDS. However, the judge ruled against them denying the dismissal of the case based on the Plaintiffs ability to file a complaint that was “legally sufficient”. The Judge noted that the Plaintiffs showed adequate sufficiently plausible information that NYSC could have used an ATDS and to require they show the specific technology utilized at this stage of the case was impractical.

This TCPA case will continue to move forward with Fitapelli & Schaffer arguing that a large number of individuals have had their privacy and rights violated after being subjected to annoying and harassing Spam Texts from NYSC. All potentially affected individuals include those who defendants sent one or more text messages to promoting products or services to their cellular telephone number through the use of an ATDS at any time beginning four years prior to the date of filing this Complaint. If you feel you may be affected by this lawsuit, or have any questions, please give Fitapelli & Schaffer, LLP a call at (212) 300-0375.

The lawyers of Fitapelli & Schaffer, LLP represent everyday people who have faced unwanted and endless telemarketing calls at home, their business, and/or on their mobile devices. If you are receiving unwanted telemarketing calls and want to stop them as soon as possible, then please call the lawyers of Fitapelli & Schaffer, LLP, (212) 300-0375, to schedule a free consultation. Or for more information, visit our website.