Finding “uncontroverted” evidence of consent, a federal district judge from the Eastern District of Michigan granted summary judgment in favor of the defendant in a TCPA action.
In Thomas v. Abercrombie & Fitch, Melissa Thomas claimed that she received four unsolicited text messages from Abercrombie & Fitch in April 2016 and filed a putative class action under the TCPA. The national retailer moved for summary judgment, arguing that Thomas provided her consent to receive the messages in December 2015 when she responded to a promotion on the Abercrombie Kids website. The promotional webpage read: “We’ve got something for you. Text style to 34824 for a surprise offer and a&f texts**Msg & Data Rates May Apply. By texting the key word to 34824, you consent to receive up to ten (10) marketing text messages per calendar month that may be sent via an automated system. Consent to receive texts at the mobile number provided is not a condition of purchasing goods or services. Text or reply STOP to cancel, and HELP for help.”
Thomas texted the keyword “Style” to 34824. In response, Abercrombie’s automated system sent a message stating: “Reply YES to confirm u agree to marketing txts via automated system at # provided. Consent 2 receive txts not required 4 purchases. Msg&DataRatesMayApply.”
The defendant’s records showed Thomas responded with a “Yes” and the system replied: “You’re signed up to texts! Msg&DataRatesMayApply. Receive up to 10 ongoing marketing messages per calendar month. Reply STOP to stop, HELP for help.”
Based on these records, Abercrombie argued that Thomas consented to receive the April texts. But the plaintiff countered that she only sent one text, “Style,” to the Abercrombie number, and that she did not recall any other text messages sent between her and the defendant in December 2015.
For support, she offered unauthenticated records from her cellular service provider that showed only her initial “Style” text and a single response from the defendant’s number. Resolving the conflict between Abercrombie’s authenticated business records and the plaintiff’s unauthenticated cellphone records, U.S. District Judge Judith E. Levy sided with the defendant.
With the exclusion of the phone records, the court had little trouble finding Thomas consented to receive the text messages. Although the plaintiff argued that the Abercrombie system may have produced erroneous results or false positives—in this case, the record showing she texted “Yes” to confirm her subscription to the texts—she presented no evidence it could have been falsely generated, the court said.
“The record in this case contains unambiguous and uncontroverted evidence that plaintiff expressly consented to receive up to ten marketing text messages per month on December 4, 2015,” Judge Levy wrote. Thus, the court ruled, “Plaintiff’s available evidence does not contradict that fact, and her testimony precludes her from arguing that she did not consent to receive the text messages at issue in this lawsuit. There is no genuine issue of material fact, based on the evidence available to the Court, as to whether plaintiff consented to receive the April 2016 marketing text messages from A&F. Accordingly, summary judgment must be granted to defendants.”
The court dismissed the case with prejudice.
To read the opinion and order in Thomas v. Abercrombie & Fitch Stores, Inc., click here.
Why it matters: After determining that the plaintiff’s unauthenticated records from her cellular service provider were not admissible, the court was left with only the defendant’s authenticated business records showing that Thomas not only texted in response to a promotional campaign but responded in the affirmative to receive up to ten marketing messages per month. With only the plaintiff’s deposition testimony in contrast, the court found the evidence of consent to be “unambiguous and uncontroverted,” dismissing the suit with prejudice. If anything, this case is a lesson in proper record keeping for plaintiffs and defendants alike.