Improper Robocall Consent Revocation Lets Kohl’s Off the Rack

Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...

By Jimmy H. Koo

Kohl’s Department Stores Inc. dodged a class action complaint alleging that the Wisconsin-based retail chain sent unauthorized robocall telemarketing text messages to consumers ( Winner v. Kohl’s Dep’t Stores, Inc. , 2017 BL 288598, E.D. Pa., No. 16-1541, motion to dismiss granted 8/17/17 ).

The case clarifies the Federal Communications Commission’s “reasonable means” standard for revocation of consent under the Telephone Consumer Protection Act by showing that courts will hold consumers to companies’ fact-specific requirements for revoking consent to receive telemarketing calls and texts.

In June, a federal appeals court similarly held that consumers can’t unilaterally revoke their consent to receive commercial phone calls if that consent is part of a bargained-for exchange in a contract.

According to privacy attorneys, the cases are part of a line of defense-friendly rulings involving allegedly illegal telemarketing practices.

Christine M. Reilly, Los Angeles-based partner at Manatt, Phelps & Phillips LLP and chair of the firm’s TCPA compliance and class action defense group, said that most retailers and many other types of companies have mobile advertising programs that use some type of “call to action” for people to opt in or out of receiving ad texts or calls.

The court’s opinion in this case shows that any request to opt out of ad programs, made by means other than those specified by the program’s terms and conditions, are insufficient, Reilly told Bloomberg BNA Aug. 18.

Troy Lieberman, litigation associate at Nixon Peabody LLP in Boston and co-leader of the firm’s TCPA team, agreed. The court’s opinion reaffirms that companies can prescribe specific ways consumers can opt out of receiving telemarketing texts, Lieberman told Bloomberg BNA Aug. 18.

Reasonable Means

In the case at hand, named plaintiff Lynne Winner initially gave consent to receive messages from Kohl’s Corp.'s retail stores but later visited a Kohl’s store to ask an employee to have the store stop sending advertising text messages.

Winner didn’t follow the method to cease the texts prescribed by the retailer in its terms of service when she gave consent—texting the word “STOP” to Kohl’s. Therefore, she didn’t suffer sufficient injury to sustain a TCPA claim, Judge John R. Padova of the U.S. District Court for the Eastern District of Pennsylvania ruled Aug. 17. A second named plaintiff, Destiny Jennings, never asked Kohl’s to stop sending the texts. Kohl’s stopped sending texts after she filed suit.

According to Reilly, the court’s opinion clarified an “open question” left after the FCC’s July 2015 order that found “consumers may revoke consent at any time and through any reasonable means.” There were disagreements over what constituted “any reasonable means,” and the court’s ruling in Kohl’s rejects the idea that consumers have “free-for-all” discretion to choose ways to revoke consent, she said.

Both Reilly and Lieberman said that notice of opt-out mechanisms must be conspicuous and reasonable.

Kohl’s didn’t immediately return Bloomberg BNA’s email request for comments.

Lemberg Law LLC represented the plaintiffs. Kelley Drye & Warren LLP represented Kohl’s.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

For More Information

Full text of the opinion is available at http://src.bna.com/rND.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Bloomberg Law: Privacy & Data Security