Man OK'd promo texts, but got more than company said would send, so lawsuit OK, judge says

By Karen Kidd | May 27, 2019

CHICAGO – Plaintiffs' lawyers may have found a new avenue to sue businesses over marketing texts, now that a federal judge gave the green light to a class action from a man who said he received more text messages than he agreed to.

Companies that send out marketing texts should be careful to stick to any limits they set when acquiring customer permission, following a decision in the U.S. District Court for Northern District of Illinois in a Telephone Consumer Protection Act (TCPA) lawsuit, a commercial and financial services litigator said.

The judge in that case, Hudson v. Ralph Lauren et. al., declined to dismiss it earlier this month because the retailer, Ralph Lauren, and its marketing company, Vibes Media, sent dozens more text messages to the plaintiff, Patrick Hudson, than had been agreed to.

"Companies need to make sure that, if they're placing limits on the scope of the frequency or number of texts, they adhere  to those limits," Shane Micheil, an associate in Womble Bond Dickinson's office in Irvin, Calif., told the Cook County Record. "Otherwise, Hudson shows that those companies may be exposed to TCPA liability for every text that goes beyond those limits."


Womble Bond Dickinson Associate Shane Micheil   Photo courtesy of Womble Bond Dickinson

Meanwhile, trial attorneys likely are taking notice of the judge's decision, Micheil said. 

"The Hudson decision might encourage plaintiff's lawyers to look beyond the typical no-consent case and target more cases where exceeding the scope of consent is at issue," he said.

Hudson filed his putative TCPA class-action complaint after he allegedly received 188 text messages from Ralph Lauren and Vibes, saying he agreed to receive only six messages per month, according the background portion of the district court's opinion and order. Hudson claimed he received at least 32 text messages more each month than he'd consented to and the vast majority of the texts did not include opt-out instructions.

Hudson alleged in his amended complaint that Ralph Lauren and Vibes violated the TCPA because those text messages were sent to him using an automated telephone dialing system (ATDS) without his express consent and because the messages lacked opt-out instructions.

Hudson's allegations differ from other TCPA cases in that he admitted to having agreed to receiving some text messages, Micheil said.

"Most cases involving marketing messages involve a complete lack of consent," he said. "Hudson is different because it involves allegations of a business exceeding the consent of 'up to 6 alert msgs/mo' that was provided by the consumer."

In their motion to dismiss, Ralph Lauren and Vibes argued that Hudson had provided prior express consent to receive the text messages, but Hudson countered that he received considerably more text messages than the amount he agreed to.  

U.S. District Judge Judge Sara L. Ellis agreed with part of Hudson's argument.

"The court finds that the first amended complaint does not conclusively establish the existence of prior express consent to receive the number of messages defendants sent Hudson and that Hudson has sufficiently alleged the use of an ATDS," Ellis said in her 14-page opinion and order issued May 1. "But because the TCPA and its regulations do not provide a basis for Hudson’s claim for failure to include opt-out instructions in each text message, Hudson cannot pursue this aspect of his TCPA claim."

Sending more text messages than the number to which Hudson agreed to is why his case against Ralph Lauren and Vibes is still alive, Micheil said.

"The court found that because the consent in this case was limited to six messages per month, the plaintiff had pled a plausible TCPA violation by alleging that the defendant had exceeded the scope of consent by texting him more than six times per month," he said.

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