Monitoring the financial services industry to help companies navigate through regulatory compliance, enforcement, and litigation issues
Effective September 1, 2025, SB 140 significantly expanded Texas’ telephone solicitation statute. SB 140 expressly covers text messages and similar electronic communications and introduced a direct private right of action under the Texas Deceptive Trade Practices Act (DTPA), with exposure to treble damages, mental‑anguish damages, and attorney’s fees. Recently, a case in the Western District of Texas brought by Ecommerce Marketers Alliance (d/b/a Ecommerce Innovation Alliance), Flux Footwear, and Stodge (d/b/a Postscript) against the State of Texas ended with a joint motion to dismiss after the Texas Attorney General clarified that companies who engage in consent‑based text message programs are not subject to the state’s registration and disclosure requirements. Still, SB 140’s new DTPA cause of action increases the cost of missteps and companies should document affirmative consent.
Background
SB 140 broadens Texas’s telemarketing framework to treat text and other electronic transmissions as covered solicitations, removing prior procedural barriers and allowing consumers to sue directly for a range of violations. The DTPA pathway materially increases leverage in disputes by making enhanced remedies available. In practical terms, any company that uses texts or similar electronic outreach to engage Texas residents now faces heightened risk.
Ecommerce Marketers Alliance v. State of Texas
The plaintiffs filed their complaint and sought preliminary relief in early September 2025, shortly after SB 140 took effect. Their core concern was whether the law extended Texas’s telephone‑solicitation registration and disclosure regime to businesses that operate consent‑based text marketing programs, i.e., programs that send messages only to consumers who have affirmatively opted in. In opposing the preliminary injunction, the State informed the court that it does not interpret SB 140 or the relevant registration provisions to apply to consent‑based programs. Based on that interpretation, the parties jointly moved to dismiss the case without prejudice, with each side bearing its own costs.
Our Take
For companies that rely on opt‑in texting, the State’s position provides needed clarity on Texas’s telephone‑solicitation registration and disclosure requirements. SB 140 still elevates exposure for any company sending text‑based outreach into Texas by expanding the scope of covered communications and enabling direct DTPA actions with enhanced remedies.
Brooke Conkle offers consumer-facing companies compliance counseling and litigation services to help them address federal and state consumer protection laws. Recognizing the challenges facing financial services companies, she provides in-depth analysis of complex issues related to consumer protection and compliance.
Virginia is a partner in the firm’s Consumer Financial Services practice and specifically within the Financial Services Litigation practice. She represents clients in federal and state court, both at the trial and appellate level in the areas of complex litigation and business disputes…
Virginia is a partner in the firm’s Consumer Financial Services practice and specifically within the Financial Services Litigation practice. She represents clients in federal and state court, both at the trial and appellate level in the areas of complex litigation and business disputes, health care litigation, including ERISA and out-of-network issues, and consumer litigation in over 21 states nationwide. As a result of new legal developments, she increasingly counsels clients to ensure they comply with the myriad of growing laws in the consumer law with a particular emphasis on the intersection of TCPA and HIPAA.
Chris focuses his practice on consumer financial services compliance, guiding clients through the many federal and state laws and regulations that impact consumer credit programs.
Troutman Pepper Locke helps clients solve complex legal challenges and achieve their business goals in an ever-changing global economy. With more than 1,600 attorneys in 30+ offices, the firm serves clients in all major industry sectors, with particular depth in energy, financial services, health care and life sciences, insurance and reinsurance, private equity, and real estate. Learn more at troutman.com.
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