TCPA Text Messaging Lawsuits Demonstrate Importance Of Double Opt-In Consent

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Continuing the increasingly aggressive trend of class actions filed against companies over allegedly unwanted texts, Kohl’s was recently sued in a Telephone Consumer Protection Act (“TCPA”) case over text messaging alerts that a consumer opted-in to receive. After reading an ad to receive a 15 percent off coupon and texting “SAVE” to a five-digit code, plaintiff received three text messages. The texts (1) welcomed the user to Kohl’s Mobile Sales Alerts; (2) provided the 15 percent off coupon, and (3) almost a month later, provided another coupon. The case is Urias v. Kohl’s, 0:18-cv-61800-RNS (S.D. Fla. Aug. 2, 2018).

In her complaint, plaintiff claims that the third text message was outside of the scope of the limited consent she provided when she texted a request for a single coupon. Plaintiff’s theory of liability may be complicated by the fact that plaintiff admits that she texted the word “SAVE” to defendant’s number after reading a third-party website that listed companies’ text alert programs. Plaintiff’s case relies on the fact that she did not explicitly request to be subscribed to the text messaging program by texting “SAVE.”  Plaintiff claims that the additional unsolicited text messages caused her actual harm, such as invasion of her privacy and aggravation.

Despite leaving it somewhat ambiguous as to what is required to obtain a consumer’s prior express written consent for multi-text marketing campaigns, the Federal Communications Commission (“FCC”) has recognized a narrow exception for one-time, on-demand text messages sent in response to a consumer’s specific request. See Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 8015-16 ¶¶ 103-06 (2015). Based on the FCC’s previous guidance, plaintiff likely will argue that merely sending one 15 percent coupon in response to “SAVE” would be permissible, but sending additional texts without an additional opt-in is not permitted. The plaintiff allegedly followed a call-to-action on a third-party site, which did not include any meaningful disclosures about what the consumer would be receiving. In comparison, a district court last year found it acceptable when Kohl’s sent three texts to a consumer who had texted “SAVE30” to a five-digit code based on a “call to action” that incorporated Kohl’s mobile terms and conditions by reference. Compare Winner v. Kohl’s Dep’t Stores, Inc., No. CV 16-1541, 2017 WL 3535038, at *7 (E.D. Pa. Aug. 17, 2017) (see decision). This case demonstrates the risks of sending multiple texts, even in response to consumers who request a text message, unless the consumer affirmatively opts-in over text to multiple text messages from a specific company.

Another TCPA case involving a similar text alert program was just preliminarily approved for settlement—Ashkenazi v. Bloomingdales, Inc. et al., 3:15-cv-02705-PGS-DEA (D.N.J. July 17, 2018). Plaintiffs alleged that they received unsolicited text messages regarding sales and promotions after signing up for a customer loyalty program and providing their phone numbers. Users were not automatically signed up for the texting program, but did receive a text message including the text “Reply Y now to confirm you want texts!”  This singular text, which created the opportunity for customers to sign up to a multi-text program, but was not the result of an explicit consumer request to be texted, resulted in a $1.4 million settlement which is likely to receive final approval at the end of this year.

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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