Yet Another Court Rejects Yet Another Contrived Revocation of Consent Claim

Yesterday the District of New Jersey issued an important decision that reinforces—as we have explained before both here and elsewhere—that a plaintiff’s alleged revocation of consent must be reasonable rather than fanciful. Viggiano v. Kohl’s Department Stores, Inc., No. 17-0243 (D.N.J. Nov. 27, 2017).

The Facts

The plaintiff in Viggiano claimed that the defendant violated 47 U.S.C. § 227(b) by sending automated text messages to her cellular phone after she had revoked her consent to receive them. She alleged that she had done so by sending the defendant text messages 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 message anymore. This is your last warning!” Opinion at 2. However, by accepting the Terms and Conditions of the defendant’s mobile sales alerts program—which the court could consider because it formed the basis of the plaintiff’s claims—she had agreed that she would use a more conventional method 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:

   •  STOP
   •  CANCEL
   •  QUIT
   •  END

Id. at 6. Moreover, after each one of her messages, she received an automated reply that stated: “Sorry we don’t understand that request! Text SAVE to join mobile alerts. . . Reply HELP for help, STOP to cancel.” Id. Not once did she respond by texting “STOP” or any of the other simple commands that she had agreed to use in order to revoke her consent. Id. Instead, she filed a putative nationwide class action seeking $1,500 for every text message that had been sent during the limitations period. The defendant responded by moving to dismiss and, in the alternative, to strike the class action allegations.

The Decision

The court dismissed the plaintiff’s claims with prejudice. Because the plaintiff admitted that she had originally consented to receive text messages, and the defendant did not deny that an ATDS had been used to send them, the court found that the “only issue” it needed to decide was whether the plaintiff’s allegations “support a finding that she revoked consent in a reasonable manner.” Id. at 5.

The court then found as a matter of law that it is unreasonable to use “sentence-long messages” after agreeing and being reminded to use “single-word commands.” Id. at 6. Indeed, in light of the “totality of the facts and circumstances,” the only “reasonable expectation” the plaintiff could have had is that her “request for revocation would not be successful.” Id. at 7 (emphasis added). And although that finding was in and of itself enough to warrant dismissing the plaintiff’s case, the court went on to infer that her actions had been not only unreasonable but also intentional. Specifically, it found that this was not a case in which the defendant had “ma[de] it difficult or impossible to effectuate revocations,” but rather was a case in which the plaintiff had “made it difficult or impossible for Defendant to honor her request.” Id. (emphasis added).

The Takeaway

In his dissent from the 2015 ruling that is now the subject of a consolidated Hobbs Act appeal, current Chairman Ajit Pai predicted that allowing consent to be revoked through “any reasonable method” would “make abuse of the TCPA much, much easier.” In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961 (2015). He was right, of course. As retailers and other frequent targets of TCPA litigation know all too well, entrepreneurial plaintiffs are manufacturing claims by ignoring prompts to text “STOP” and replying instead with “halt,” “cease,” “desist,” “discontinue,” “refrain,” or other responses that are designed to evade senders’ systems for recognizing and registering revocations of consent. As we await a decision in the appeal from the FCC’s “any reasonable method” ruling, it is reassuring to see courts continue to hold that such contrivances are anything but “reasonable.”


Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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