Court Finds Revocation of Consent Unreasonable, Tosses Suit

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

Taking a stand on the revocation of consent, a New Jersey federal court judge rejected a plaintiff’s argument that she had reasonably conveyed her desire to be removed from a text message marketing list.

Amy Viggiano signed up to receive text messages from Kohl’s Department Stores. She later changed her mind and attempted to revoke her consent by replying to the automated texts she received. Her messages included: “I’ve changed my mind and don’t want to receive these anymore,” “Please do not send any further messages,” and “I don’t want these messages anymore. This is your last warning!”

Kohl’s continued to send texts to Viggiano, all of which indicated that she could opt out of the messages by texting the word “STOP” in response. Instead, she filed suit in New Jersey federal court alleging the national retailer violated the Telephone Consumer Protection Act (TCPA).

The defendant moved to dismiss the suit, arguing that Viggiano failed to revoke her consent in a reasonable manner. The terms and conditions to Kohl’s Mobile Sales Alerts include instructions for how consumers can opt out of the messages, the company told the court, including texting any of the following one-word messages: STOP, CANCEL, QUIT, UNSUBSCRIBE or END.

Viggiano did not use any of these commands and elected to send her longer missives. Each time she did so, she received an automated text in reply that stated: “Sorry we don’t understand the request! Text SAVE to join mobile alerts … Reply HELP for help, STOP to cancel.”

The plaintiff countered that the Federal Communications Commission (FCC) prohibits callers from designating an exclusive means to revoke consent and mandates that consumers have a right to revoke consent using any reasonable method. Her texts to Kohl’s were unequivocal written withdrawals of consent and therefore reasonable, she said.

Looking to the totality of the facts and circumstances surrounding the situation, U.S. District Judge Brian R. Martinotti found the plaintiff’s argument unpersuasive.

“Plaintiff has pled she received replies to her efforts to opt out instructing her to text ‘STOP’ to opt out of future texts,” he wrote. “Accepting the facts in the Complaint as true, the Court finds Plaintiff has not pled a claim for a TCPA violation. Plaintiff cannot plausibly assert she ‘had a reasonable expectation that … she could effectively communicate … her request for revocation to [Defendant].’ Indeed, the only reasonable expectation Plaintiff could have had is the opposite—her request for revocation would not be successful.”

Viggiano also failed to allege the defendant purposefully made opting out difficult or impossible. “To the contrary, the facts in the Complaint suggest Plaintiff herself adopted a method of opting out that made it difficult or impossible for Defendant to honor her request,” the court said. “Plaintiff bases her claim on the fact that Defendant specified a means of opting out. The FCC’s ruling [is] clear—a caller may not designate a method of opting out ‘in ways that make it difficult or impossible to effectuate revocations.’ Plaintiff’s arguments to the contrary defy both the FCC’s rulings and common sense.”

Judge Martinotti dismissed the complaint with prejudice.

To read the opinion in Viggiano v. Kohl’s Department Stores Inc., click here.

Why it matters: This decision follows others that recognize that a plaintiff cannot manufacture a TCPA claim by ignoring clear and simple opt-out instructions. Given the confusion caused by the FCC’s 2015 order on revocation of consent, this decision and others like it provide an important counterbalance by defining the contours of “reasonable” revocation.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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