A federal judge has dismissed a purported Telephone Consumer Protection Act class action against Kohl’s Department Stores Inc. because the plaintiff failed to follow explicit instructions for stopping text messages from the company.
U.S District Judge Brian Martinotti, sitting in Trenton, dismissed the lawsuit filed by lead plaintiff Amy Viggiano, an Ocean County resident, against Kohl’s on Nov. 27.
Martinotti said in his opinion that while Viggiano may have received unwanted text messages from Kohl’s, there was no evidence that the retailer knowingly and purposefully violated the TCPA.
The TCPA was enacted in 1991 and, in part, requires companies that send out texts, emails, faxes and the like to provide means for consumers from receiving solicitations. The act prohibits one party from using an automated dialing system to send a commercial message with the recipient’s consent.
Viggiano filed the complaint on behalf of herself and an unspecified number of other plaintiffs that she estimated could be in the “tens of thousands,” according to Martinotti’s opinion.
But Martinotti dismissed the case because Viggiano failed to follow Kohl’s specific instruction that the only way to unsubscribe from the text messages was to reply with a text that read “STOP.”
Instead, according to Martinotti, Viggiano sent several messages in response such as: ”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!”
In response, Kohl’s texted her that it didn’t understand her requests.
The promotional texts from Kohl’s continued, and Viggiano filed her lawsuit.
Martinotti, in his ruling, said the instructions in Kohl’s texts were clear.
The lawsuit, Martinotti said, did not allege that Kohl’s deliberately made it difficult or impossible to opt out of the text messages.
“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 judge said, taking guidance from a February ruling by the U.S. District Court for the Central District of California in Epps v. Earth Fare, which he said dealt with “nearly identical facts.”
The court in Epps found that the plaintiff’s TCPA claim failed because “heeding defendant’s opt-out instruction would not have plausibly been more burdensome on plaintiff than sending verbose requests to terminate the messages.” And, like Martinotti, the court in Epps also said the plaintiff failed to allege the defendant made it “difficult or impossible to effectuate revocations.”
Martinotti rejected Viggiano’s claims that her demands were “unequivocal written withdrawals of consent.”
Rules issued by the Federal Communications Commission are clear that “a caller may not designate a method of opting out ‘in ways that make it difficult or impossible to effectuate revocation,’” Martinotti said, quoting the regulations. “Plaintiff’s arguments to the contrary defy both the FCC’s rulings and common sense.”
Viggiano was represented by Gerald Clark, who runs a firm in Red Bank. Kohl’s was represented by Jeffrey Jacobson of the New York office of Kelley Drye & Warren. Neither returned phone calls seeking comment.