Viggiano v. Kohls Department Stores, Civ. Action No. 17-0243-BRM-TJB, (D.N.J. Nov. 27, 2017)
Plaintiff filed a class action TCPA lawsuit placing at issue automated text message allegedly sent by Defendant after Plaintiff claimed to have revoked consent to be contacted by text message. While Plaintiff admitted signing up to receive the messages, Plaintiff claimed to have later withdrawn consent through responses such as: (1) “I’ve changed my mind and don’t want to receive these anymore,”; (2) “Please do not send any further messages.”; and (3) “… I don’t want these messages anymore. This is your last warning!” Defendant allegedly continued to send automated texts to Plaintiff that indicated the only way Plaintiff could opt out of the texts would be to text “STOP” to Defendant.
Defendant moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Granting Defendant’s Motion, the Court noted that the only real issue was whether Plaintiff pled facts to support a finding that she revoked consent in a reasonable manner such that Defendant’s continued texts violated the TCPA. Specifically, Plaintiff admitted consenting to receiving automated text messages from Defendant and Defendant did not deny using an ATDS to send the messages. Concluding Plaintiff did not reasonably revoke consent, the Court stated that the FCC requires callers give consumers a direct opt-out mechanism, such as “a key activated opt-out mechanism for live calls” or “a reply of ‘STOP’ for text messages.” This means, that the opt-out options must allow consumers to respond to calls or texts using a reasonable method to prevent future communication.
Because Plaintiff did not text any of the single word command options provided in Defendant’s Terms and Conditions (including STOP, CANCEL, QUIT, UNSUBSCRIBE, and END), but instead sent several sentence-long messages to inform Defendant that she was opting out, her method of revocation was unreasonable. She could not plausibly assert that she had a reasonable expectation she effectively communicated her request for revocation to Defendant. Indeed, the Court noted that the facts in the Complaint suggested that Plaintiff chose “a method of opting out that made it difficult or impossible for Defendant to honor her request.”
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