Class Action Alleges Build-a-Bear Sent Unlawful Texts to Phone Numbers on Do-Not-Call List

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A proposed class action alleges Build-a-Bear Workshop has violated federal law by sending without consent more than one text message to consumers whose numbers are listed on the National Do-Not-Call Registry.

According to the suit, the Telephone Consumer Protection Act (TCPA) stipulates that each person who receives more than one unwanted text message during a 12-month period after registering their number on the Do Not Call Registry is entitled to an award of $500 per call or up to $1,500 per call if the violation is found to have been willfully or knowingly committed.

The lawsuit claims Build-a-Bear, who markets and sells stuffed animals through its retail stores and online, sent the plaintiff, a Louisville, Kentucky resident, a handful of text messages even after he expressly and repeatedly revoked his consent to receive them and despite the fact that his number is listed in the national Do Not Call Registry.

Per the case, the plaintiff purchased three stuffed animals from Build-a-Bear’s website in August 2020 and, “[t]o the best of his knowledge,” never consented to receive text messages from the defendant. The suit alleges, however, that Build-a-Bear began in November 2020 to send the plaintiff promotional text messages that linked to its website and social media accounts. The following represent examples of text messages the plaintiff allegedly received in November 2020:

After receiving the last message on November 29, the plaintiff responded with “Stop” twice, the suit says. Build-a-Bear allegedly replied twice with the following text:

Despite the plaintiff’s opt-out request, Build-a-Bear continued to send the man promotional text messages the following month, according to the complaint. Per the suit, the plaintiff again attempted to opt out by texting “Stop” in response to one of the messages and, “in frustration,” further stated, “I’ve told you to stop quit harassing me,” to which Build-a-Bear replied with, “Sorry, we’re unable to reply to individual text messages. We invite you to check out all the fun stuff on buildabear.com—if you need help, our team will be happy to assist you!”

Throughout December 2020 and January 2021, the plaintiff continued responding to Build-a-Bear’s messages with “Stop” and received in response each time the defendant’s assurance that he had been opted out of its texting campaign, the lawsuit alleges. The case argues that the plaintiff’s attempts to opt out and Build-a-Bear’s continued practice of sending additional texts show that the defendant’s opt-out system is “nonfunctional,” and that consumers are “powerless” to stop the messages from being sent.

As the suit tells it, although Build-a-Bear’s global privacy policy states that the company honors a “once out—always out” policy for consumers who have requested to opt out of receiving its communications, the plaintiff’s experience shows this not to be the case.

“Even when Plaintiff repeatedly and unambiguously revoked consent, Build-a-Bear knowingly and willfully sent several text messages to Plaintiff, a member of the Do Not Call Registry, in violation of its ‘once out—always out’ policy,” the complaint alleges. “After his revocations, Plaintiff never explicitly told Build-a-Bear in writing that he was consenting to receive text messages.”

The plaintiff says he was “annoyed” by Build-a-Bear’s text messages and felt that they were “intrusive and that they interfered with his use and enjoyment of his telephone.”

Initially filed in St. Louis County, Missouri Circuit Court on August 24, the lawsuit was removed to the state’s Eastern District Court on September 25.

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