In Yates v. Checkers Drive-in Rest., Inc., No. 17 C 9219, 2020 U.S. Dist. LEXIS 205241, at *8 (N.D. Ill. Nov. 3, 2020), Judge Harjani ordered class notice be given by text message in a TCPA class action.

Defendants, on the other hand, contend that “providing notice via text would not be appropriate in this case, as it would potentially exacerbate the very harm that Plaintiff sought to prevent in bringing the action and could expose the parties and the Claim Administrator to additional risk under the TCPA.” Doc. 150 at 6.  The Court finds that supplemental notice by text message is appropriate in this case for three main reasons. First, the Court views the unexpectedly low claims rate in this case—about one third of 1%—as a warning that the primarily email notice program may have been inadequate. The exceedingly low response rate may be attributable to the failure to utilize electronic notice to the fullest extent possible. Email and text messages are both electronic forms of communication which are common and can be effective. Vega v. Point Security, LLC, 2017 U.S. Dist. LEXIS 148105, 2017 WL 4023289, at *4 (W.D. Tex. Sept. 13, 2017) (“email and cell phone numbers are a stable, if not primary, point of contact for the majority of the U.S. population.”). However, many Americans use text messages as their primary contact and access text messages much more than they would email or regular mail. “The reality of modern-day life is that some people never open their first-class mail and others routinely ignore their emails. Most folks, however, check their text messages regularly (or constantly).” Lawrence v. A-1 Cleaning & Septic System Sys., LLC, 2020 U.S. Dist. LEXIS 74685, 2020 WL 2042323, at *5 (S.D. Tex. Apr. 28, 2020); see also Thrower v. UniversalPegasus, Int’l Inc., 2020 U.S. Dist. LEXIS 161132, 2020 WL 5258521, at*12 (S.D. Tex. Sept. 2, 2020) (“When it comes to personal email accounts, we have conditioned ourselves to tune the messages out, assuming they are unwanted advertisements, social-media notifications, unwelcome chain mail, a fake Nigerian prince seeking to transfer large sums of money out of the country, phishing scams, etc.”). “[E]mails have the infelicitous tendency of slipping through the cracks, especially when folks have multiple e-mail accounts (e.g., work, personal, school) with which they must stay current . . . . The same cannot be said about text message; people keep up with them.” Thrower, 2020 U.S. Dist. LEXIS 161132, 2020 WL 5258521, at *12; M.A. by Ashear v. NRA Grp., LLC, 2019 U.S. Dist. LEXIS 93444, 2019 WL 2357767, at *2 (E.D.N.Y. June 4, 2019) (recognizing that our “primary methods of communication have evolved” to include “text messages and phone calls to cellular telephones.”). Indeed, one court faced with a request to send notice to potential class members by text message in addition to email and mail observed that “providing notice via text message in addition to other traditional notice methods will almost always be more appropriate in modern society.” Dickensheets v. Arc Marine, LLC, 440 F.Supp.3d 670, 672 (S.D. Tex. Feb. 19, 2020). Given the reality of communications today, text message notification may be more effective at notifying potential class members than emailed notice alone.