Text Me 6 Times, Shame on Me; Text Me 30 Times, Shame on You: 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 Hudson decision 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.
Hudson is therefore a reminder to telemarketers, and others, that if you only obtain consent to send a certain number of texts or place a certain number of calls, it is critical to adhere strictly to that limitation. Otherwise, you could be facing a TCPA claim or, worse, a class action.
Consent was not the only interesting issue in the Hudson decision. The court also rejected the defendant’s motion to dismiss on ATDS grounds. The court reasoned that even if the defendant did not use a random or sequential number generator to generate the plaintiff’s number, the plaintiff sufficiently alleged that the defendant’s system has the capacity to generate random and sequential numbers. In so holding, the court joined a number of others in holding that even if a random or sequential number generator is required, the issue is one for summary judgment, not a motion to dismiss, as long as the plaintiff pleads some baseline facts.
So far, so good for the plaintiff. But the court closed by giving a win for defendants engaged in text-marketing campaigns. One of the many splits of authority in TCPAWorld is whether telemarketers must provide opt-out instructions in every text message, as they plainly must do in prerecorded voice messages. The Hudson court sided with those that apply the plain language of FCC regulations in holding that telemarketers do not have to provide opt-out instructions in every marketing-related text message. The court therefore granted the motion to dismiss claims involving an alleged failure to provide opt-out notices.
So Hudson has a little something for everyone. It opens the door for plaintiffs to argue that a telemarketer exceeded the scope of consent and provides a path to surviving a motion to dismiss on ATDS grounds. But it also provides authority for telemarketers to deny having to include opt-out instructions in every text message they send.