In February 2018, a judge in the Central District of California denied Hot Topic’s motion for summary judgment in a putative Telephone Consumer Protection Act class action stemming from text messages the retailer sent.

Plaintiff Diana Soukhaphonh provided her cellphone number to the company in connection with a purchase transaction on the company’s retail website in May 2015. According to Hot Topic, Soukhaphonh must have provided during her May 15 transaction the requisite prior express consent to be called when she failed to uncheck a prechecked box indicating “Yes, I want to receive text messages about special events and offers.” Six months later, Soukhaphonh received a welcome message from the retailer, indicating she had been subscribed to Hot Topic alerts. She replied “stop” and received a confirmation that she would not receive any more texts. She did not receive any further texts from the company.

According to Hot Topic, its April 1 database backup indicated Soukhaphonh had not elected to receive text messages, but a June 1 database backup indicated she did consent to receive texts. “The only inference” that can be drawn from this, Hot Topic argued, is that Soukhaphonh opted in during her May 2015 purchase transaction to receive text messages.

But U.S. District Judge Dolly M. Gee disagreed and found that there were genuine material issues of fact because Soukhaphonh had provided a declaration that she had never consented to the messages, and witnesses had presented evidence that Hot Topic’s customer records database could have been altered on the back end. The judge also noted that there was a factual question as to whether the initial text message was marketing.

Plaintiff and defendant also fiercely battled over evidentiary objections and other discovery disputes. Hot Topic took particular offense to the insinuation that it had doctored evidence. The judge admonished both parties for “tax[ing] the Magistrate Judge’s time” with abusive discovery motions.

Why it matters: Critical to the judge’s decision in this case appears to be the evidence suggesting potential vulnerabilities in Hot Topic’s consent database. Hot Topic was able to provide only circumstantial evidence from its database backup records that Soukhaphonh had opted in, and those records were susceptible to alteration on the back end. This case is a reminder that it is extremely important to keep detailed and secure records about when and how consent was provided for each consumer called. The timing of the text message may also have played a role. Had the text been timed more closely to the transaction, the evidence would likely have been stronger that Soukhaphonh had, in fact, opted in during her May 2015 online purchase transaction.

To read the order in Soukhaphonh v. Hot Topic, Inc., click here.