Viggiano v. Kohl’s
Dismissed with prejudice – Plaintiff joined, then withdrew from a Kohl’s text program. Plaintiff alleged the texts continued after she attempted to opt-out. Her attempts included sending the following via text message:
• I’ve changed my mind and don’t want to receive these anymore.
• Please do not send any further messages.
• I don’t want these messages anymore. This is your last warning!
Plaintiff alleged Kohl’s told her the only way to opt-out was to text ‘STOP.’
Kohl’s stated that after each opt-out request, its system automatically responded that the request was not understood, and to reply STOP to opt-out. Kohl’s stated the replies read:
“Sorry we don’t understand the request! Text SAVE to join mobile alerts. Msg&DataRatesMayApply. Receive 5-7 msgs/mon. Reply HELP for help, STOP to cancel.”
Kohl’s stated opt-out instructions were also included in Kohl’s short form and long form text program notices.
The court recognized that consumers have a right to revoke consent using any reasonable method, and callers must provide a direct opt-out mechanism such as a reply of “STOP” for text messages (2015 FCC rder at ¶64). However, the court found plaintiff’s obfuscated opt-out requests were not reasonable. The court cited (an older version) of a Kohl’s alert program terms that provided the following instructions for revoking consent:
How to Opt-Out
To stop receiving future Text Messages from Kohl’s pursuant to the Kohl’s Mobile Sales Alerts Program, you can text any of the following commands to 56457:
Once you have taken this step to opt-out of the Program, you will receive a final confirmation Text Message, and thereafter, no further Text Messages will be sent to your mobile number (unless you want to opt-in again by following the steps outlined above).
The court found plaintiff never texted any of the provided single-word commands. Additionally, plaintiff ignored instructions provided in response to her sentence-long opt-out messages.
The court stressed the FCC indicated reasonableness of an opt-out is based on “the totality of the facts,” and has prohibited “deliberately design(ing) systems or operations in ways that make it difficult or impossible to effectuate revocations” (2015 FCC Order at ¶64 n.233). Plaintiff did not alleged Kohl’s deliberately designed its systems make it difficult to opt-out. To the contrary, she chose to submit requests that made it difficult for Kohl’s to honor. Since the only reasonable expectation was her request for revocation would not be successful, plaintiff did not plausibly plead a TCPA violation, and the complaint was dismissed with prejudice.
[D. N.J.; 3:17-cv-00243]
jbho: An unpublished opinion, but still helpful. Good to see common sense prevail. Similar to the outcome in Epps v. Earth Fare (C.D. CA; 2:16-cv-08221), where the court found plaintiff ignored clear instructions and willingly chose a more burdensome method to opt-out.
Nonetheless, still a good idea to beef up your opt-out keywords to include “stop,” “cancel,” “quit,” “unsubscribe,” “end,” “halt,” “cease,” “desist,” “discontinue,” and “refrain,” – as well as more colorful ones like in Mohamed v. Off Lease Only (S.D. FL; 1:15-cv-23352).
The court didn’t really address the “exclusive means to revoke” issue, but seemed to imply that recognizing multiple keywords would address that, by citing an older version of Kohl’s mobile terms . The current version only calls out STOP, but most short code providers will honor an expansive list – something you might want to verify.
Finally, Kohl’s appears to be successfully defending its text message programs. In Winner v. Kohl’s (E.D. PA; 2:16-cv-01541), the court ruled its sign-up flow was sufficient for Prior Express Written Consent. So if you’re benchmarking your SMS programs, it’s definitely worth taking a look at what Kohl’s is doing.