Judge Padova in the Eastern District of Pennsylvania recently granted a motion by Kohl’s to dismiss a putative Telephone Consumer Protection Act class action for lack of standing in Winner v. Kohl’s, finding that texting a specific opt-in code after viewing a “call to action” satisfied the TCPA’s prior express written consent (PEWC) requirement.
In 2014, Winner saw a call-to-action in a Kohl’s store, texted the call-to-action keyword “APP,” received a response with information about the Kohl’s app (and stating she’d receive two or three autodialed messages) and then received a second message inviting her to text “Save30” for other coupons. Winner then opted into the mobile alerts program by texting “Save30,” and she began getting alerts. She claimed she repeatedly asked for the messages to stop, including asking an employee in the store. The in-store employee was unable to help. Finally, Winner texted “stop” to Kohl’s and the messages stopped. The second plaintiff, Jennings, also texted a call to action in 2014 and began receiving messages, but did not claim she revoked consent.
Plaintiffs claimed, among other things, that they were never “clearly and conspicuously informed they were enrolling in automated” marketing messages and Kohl’s never obtained PEWC. Winner also claimed she revoked consent. The parties stipulated to certain facts, including the language at the bottom of the calls to action, which stated that autodialed marketing messages would be sent, and consent was not a condition of purchase. The disclosures were contained at the bottom of the call to action, in fairly small font compared with the rest of the text.
Kohl’s moved to dismiss based on lack of standing, arguing that because both plaintiffs consented to receive the messages, they could show no concrete injury.
Judge Padova agreed, finding that both “expressly consented” to receive the marketing messages and provided PEWC. While the court cited Spokeo, the decision is grounded on more general standing principles, and is not specific to the Spokeo “bare procedural violation” holding. The court found the disclosures Kohl’s used sufficient to satisfy the standard for PEWC as they stated that (1) by opting in the customer “will receive two to three auto-dialed text messages” to set up their participation; (2) “Participation is not required to make a purchase;” (3) customers could “Reply HELP for help, reply STOP to cancel;” (4) message and data rates may apply; and (5) the terms and conditions of the program were available on Kohl’s website.
The court also noted the sequence of the messages to both plaintiffs—both sent an opt-in text to Kohl’s before Kohl’s sent any text message. Importantly, the “written agreement” was in the form of the text message Winner received after texting “APP,” which included a disclosure that she would receive five to seven texts a month and incorporated by reference the terms and conditions of the program by including a link to Kohl’s terms and conditions. The terms and conditions contained PEWC disclosures, including that consent was not required as a condition of purchase.
After disposing of plaintiffs’ lack of consent claim, the court made quick work of Winner’s revocation claim. The court noted that Winner did not specify how she tried to revoke consent, except her request to a store employee. Importantly, the court found this action “did not comply with the terms and conditions of the program,” which required texting “STOP” to opt out, and was thus insufficient to establish an injury-in-fact. Moreover, once Winner texted “STOP,” the messages stopped.
Finally, the court rejected the plaintiffs’ argument that only one text was permitted based on the 2015 FCC order, essentially arguing their request was for a one-time message. First, the court recognized the opt-ins were received before the 2015 FCC order was issued, and thus it didn’t apply to the call to action. Substantively, the court found that more than one text is permitted where PEWC is received, which it was in this case.
Why it matters: The opinion out of the typically plaintiff-friendly Third Circuit is a win for retailers, as it shows that even plaintiff-friendly jurisdictions seem to be taking a hard look at manufactured TCPA claims. The decision also indicates that PEWC disclosures can be incorporated into a call to action by reference to a marketer’s terms and conditions (however, here they were also contained on the in-store call to action). And it also shows that despite the 2015 FCC order on revocation, not following clear instructions for opting out is unreasonable and thus cannot be the basis for a claim. Finally, the decision underscores the importance of properly crafted and compliant text marketing campaigns, including proper language in terms and conditions.