May 31, 2019
In a case pending before the United States District Court for the Northern District of Illinois, a judge has declined to dismiss Telephone Consumer Protection Act (“TCPA”) violation claims even where the defendants were able to demonstrate that the plaintiff had provided TCPA consent.
For what reason were the claims not dismissed despite documented TCPA consent?
The facts of the instant case are unusual insofar as the subject plaintiff acknowledged that he provided consent to receive text message marketing from Ralph Lauren Corporation (“RL”). The plaintiff alleges, however, that he only consented to receive six text messages per month from RL, but that he usually received many more text messages than that on a monthly basis. As a result, plaintiff alleges that RL and its marketing partner exceeded the scope of the consent provided, in violation of the TCPA. The defendants filed a motion to dismiss the complaint, arguing that consent is an absolute defense to a TCPA claim and that the plaintiff in fact acknowledged providing consent to be contacted by or on behalf of RL. The Court, however, ultimately decided that while the plaintiff consented to be contacted by RL, that TCPA consent only authorized six text messages per month and that any text messages beyond the authorized six were sent without the necessary consent to do so. Specifically, the Court noted that “courts consider the scope of consent based on the type of calls or messages that a plaintiff receives” in concluding that the complaint sufficiently pled that “he did not consent to all of the messages” that RL and its marketing partner sent to him. As a result, the Court has allowed the TCPA violation claims to proceed and to proceed on a class wide basis.
Ensuring that Your Business Has Valid TCPA Consent
Text messaging has become one of the most common forms of communication today. In order to reach potential consumers via text messaging, however, it is vital to have proper consent to do so. This case is instructive on the fact that merely obtaining some manner of TCPA consent is not a panacea to liability. The facts of this case serve as an important reminder that it is critical to not only carefully craft TCPA consent language, but to also abide by the terms established by that particular scope of consent.
In today’s regulatory environment, text message marketing practices and procedures should be regularly examined by experienced counsel in order to avoid potentially disastrous consequences in the event that a class action plaintiff files a text message TCPA lawsuit against you.
If you are interested in learning more about this topic, need to review your text message marketing practices and procedures or if you are the subject of a TCPA consent-related lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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