Court Bends Every Rule, Grants Dismissal to Kohl’s in “Opt-Out Evader” TCPA Suit

This article originally appeared on the Consumer Financial Services Legal Update. It is republished with permission from the author.

One of the most annoying inhabitants of TCPA land is the Opt-Out Evader. This fellow or lady tries to set up TCPA lawsuits by texting phrases s/he knows will not be recognized by text service providers. Rather than simply texting “STOP,” the Opt-Out Evader texts, “It would be great if you would no longer text me. Thanks.” And instead of QUIT, s/he might say, “These text messages are really quite excessive so please cut it out.” It is all a scam, of course. The Opt-Out Evader knows that texts are bound to continue—few, if any, text message senders have the time/money/wherewithal to manually monitor each and every response in real time. Instead, computer programs are used to track and obey Opt-Out requests and those programs recognize words like “STOP” and “QUIT” but not “I ever so cordially request the tranquility attendant an untexted phone.”

Judge Brian Martinontti of the District of New Jersey saw this tactic a mile away and dealt a steely hand of rough justice to an Opt-Out Evader this week. In Viggiano v. Kohl’s Dep’t Stores, Inc., Civ. Action No. 17-0243-BRM-TJB, 2017 U.S. Dist. LEXIS 193999 (D. N.J. Nov. 27, 2017), Kohl’s moved to dismiss a TCPA case where it was abundantly clear that the Plaintiff was nothing more than a sassy Opt-Out Evader. There was one little problem though—none of the facts needed to prove the opt-out evasion were pleaded on the face of the complaint. Usually, this means nothing can be done at the pleadings stage and the Defendant must await summary judgment to clear the air.

But Judge Martinontti was not in the mood for delay. He first tolerated Kohl’s submission of its Terms and Conditions, finding that they were “integral” to the allegations of the complaint. That’s a stretch, but not without precedent. Next, however, the Court accepted and considered Kohl’s declaration to the effect that the Opt-Out Evader received a message in response to each of her texts stating that Kohl’s did not recognize her request. That’s just baffling. I’ve read the Federal Rules a few times and I’m pretty sure extrinsic evidence cannot be considered on a Rule 12(b)(6) motion—unless the Court uses its discretion to convert the motion to a Rule 56, which it didn’t do.

No matter. With the full record (somehow) before it, the Court addressed the merits. First, the Court found that Kohl’s Terms and Conditions provided a “reasonable means” of opting out to consumers: texting “STOP,” “QUIT,” and a few other easy-to-remember phrases back to Kohl’s in response to an unwanted message. Second, the Court found that Plaintiff’s failure to use the ordained method meant that Plaintiff lacked a “reasonable expectation that. . . she could effectively communicate . . . her request for revocation to [Defendant]” in the manner she chose. When Plaintiff protested that she still gets to choose the method unless her method is too burdensome the Court shut it down. Relying on Epps v. Earth Fare, Inc., No. 16-8221, 2017 U.S. Dist. LEXIS 63439, 2017 WL 1424637, at *6 (C.D. Cal. Feb. 27, 2017) the Court held that Kohl’s gets to dictate the revocation method so long as it is not “difficult or impossible to effectuate revocations.”

Viggiano is a great case to use against Opt-Out Evaders, but it obviously has broader uses as well. I have been saying for over a year now that contract-based revocation terms are enforceable even after the Omnibus. (The FCC’s Respondent’s brief in the ACA, Int’l appeal says so and so did the FCC’s Counsel at Oral Argument—I was there.) But there have been precious few decisions on the topic. While Reyes opens the door a crack, Viggiano provides solid support for the proposition that businesses may dictate the manner in which consumers revoke their consent—so long as it isn’t too painful on the consumer.