(CN) – A class that claimed Taco Bell sent unwanted promotional text messages failed to persuade a federal judge that the company was directly responsible for their annoyance.
Tracie Thomas sued Taco Bell in 2009 on behalf of a class that received promotional texts from the Taco Bell Local Owners Advertising Association in Chicago.
The Association, along with advertising agency ESW Partners, approved a promotional sweepstakes campaign in 2005 that would send “an outbound text message to 17,000 ‘Chicagoans’ between the ages of 18 and 34 years of age,” the court’s summary says.
After the promotion was approved, ESW contracted with ipsh!net Inc. to procure a list of cell phone numbers.
Thomas claimed the texts, which encouraged customers to enter a contest, violated the Telephone Consumer Protection Act in her complaint in California’s Central District.
Thomas argued that Taco Bell was vicariously liable for the texts even though the company did not directly send them, because the restaurant benefited from the messages.
District Judge Cormac Carney disagreed in a 12-page order last week.
“Mere approval and funds administration cannot be equated with control over the manner and means by which the campaign was designed and executed,” the judge wrote.
“Ms. Thomas did not present any evidence to the Court that Taco Bell directed or supervised the manner and means of the text message campaign conducted by the Association and its two agents, ESW and Ipsh. She presented no evidence to the Court that Taco Bell created or developed the text message. Nor did she present any evidence to the Court that Taco Bell played any role in the decision to distribute the message by way of a blast text.”
The judge continued: “All of this control over the manner and means of the text message campaign was exercised by the Association, ESW, and Ipsh, and Ms. Thomas has not presented any evidence to the Court demonstrating that Taco Bell controlled the actions of these entities with respect to the campaign. Taco Bell, simply put, had nothing to do with it.” Judge Carney granted Taco Bell’s motion for summary judgment.