Court Holds TCPA Plaintiff Plausibly Alleged That Defendant Exceeded the Scope of Consent

Although they often get lost in the morass surrounding the definition of an ATDS, significant TCPA cases continue to turn on the scope of consent. Hudson v. Ralph Lauren Corp. is one such cases. See No. 18 C 4620, 2019 U.S. Dist. LEXIS 73916 (N.D. Ill. May 1, 2019).

TCPA cases often analyze consent as a binary, all-or-nothing prospect. And in many situations – especially collection and other informational calls – that is often the case. But as the Hudsondecision demonstrates, consent can be a fact-specific inquiry subject to the type of scope and contract questions involved in non-TCPA cases in which consent is an issue.

The plaintiff in Hudson admittedly consented to receiving up to 6 text messages per month from the defendant. The defendant, however, allegedly sent over 32 text messages above the 6-test-per-month limit over the course of several months. The Court reasoned that consent is not necessarily an all-or-nothing prospect, and held that the plaintiff stated a plausible claim that the defendant exceeded the scope of consent. The court therefore denied the motion to dismiss on that basis.

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