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

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.

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