Court Finds User Reply To SMS Call To Action Constitutes Prior Express Written Consent

Winner v. Kohl’s
Dismissed – Kohl’s allegedly sent (ATDS) texts to plaintiffs’ mobiles in excess of the number anticipated, and without Prior Express Written Consent. Plaintiff Winner further claimed texts continued despite her requests they cease.

The sequence of events was as follows (plaintiff Winner):
• Plaintiff texted keyword ‘APP’ in response to a Kohl’s ad

Terms in the ad stated, “You will receive two to three auto-dialed text messages sent to your mobile number. Participation not required to make a purchase. You must be 18 years or older to text Kohl’s. Reply HELP for help, reply STOP to cancel. Msg&Data Rates May Apply. See Kohl’s.com/mobile for mobile Terms and Conditions.”

• Kohl sent two texts
1) KOHLS: Thanks for texting! To enroll in Yes2You Rewards click the link download the Kohl’s App then sign in or create an account. http://bit.ly/1CXVMLK
2) KohlsALERTS: Get more savings sent straight to your phone! Text SAVE30 to opt in to our Mobile Sale Alerts. Receive 5-7 msgs/mon. Msg&Data Rates May

• Plaintiff texted keyword ‘SAVE30‘

• Kohl sent an MMS & SMS confirming plaintiff’s enrollment

• Texts continued with discount offers, at the stated 5-7 per month rate

• On at least one occasion, plaintiff redeemed a $10 offer received via text

• Plaintiff texted ‘STOP‘

• Kohl’s sent an opt-out confirmation text, and texts ceased

Plaintiff Jennings experience was similar. Texts began (at the promised 5-7 per month rate) after she texted keyword ‘SAVE07‘. Plaintiff never sent a ‘STOP’ request. Terms were specified in the following ads:

The court ruled that the flows implemented by Kohl’s were sufficient to constitute consent under the eSign Act, and were consistent with the consent requirements of the FCC’s 2015 TCPA Order. Plaintiffs opted-in when they ‘signed’ the agreements by texting the enrollment keywords ‘SAVE30‘ and ‘SAVE07.’ Thus Kohl’s had Prior Express Written Consent to send the texts to both plaintiffs.

With respect to plaintiff Winner’s claims she withdrew consent, she produced no evidence of revocation and only claimed she asked a store clerk to stop texting, a method that did not comply with the opt-out instructions to which she agreed in the mobile terms. Since she received no texts after sending her ‘STOP‘ request, all texts were sent with her Prior Express Written Consent.

The court also rejected plaintiffs’ arguments they only consented to receive single response texts, since the terms clearly stated multiple texts would be sent, and the 2015 Order clearly permitted additional texts where a sender obtained “prior express written consent with the specified disclosures.” (FCC 2015 Order, at ¶ 106 n.363.)
[E.D. PA; 2:16-cv-01541]
jbho: Good to see the court recognized that CTIA/MMA compliant CTAs constitute Prior Express Written Consent under the TCPA. This case provides a nice guide for crafting SMS program CTAs. The opinion does a great job of breaking down the sequence of events, as well as provides enlightening screenshots. An good read for anyone who is running marketing text message programs.

HOWEVER, the issue is far from settled. In Larson v. Harman Mgmt (E.D. CA; 1:16-cv-00219), the court denied a motion to dismiss finding that plaintiff may not have been exposed to the terms, since he obtained the keyword through ‘word of mouth,’ and not from any marketing collateral. Thus, the similar A&W process did NOT evidence Prior Express Written Consent.

I’ll continue to monitor to see how this falls out.