Thomas v. Abercrombie and Fitch et al

Filing 53

OPINION and ORDER Granting Defendants' 37 Motion for Summary Judgment. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Melissa N. Thomas,
Plaintiff,
v.

Case No. 16-cv-11467
Judith E. Levy
United States District Judge

Abercrombie & Fitch Stores, Inc.,
et al.,

Mag. Judge Mona K. Majzoub

Defendants.
________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT [37]
This is a Telephone Consumer Protection Act (“TCPA”) case.
Plaintiff Melissa N. Thomas alleges that in April 2016, she received
four unsolicited text messages from defendants Abercrombie & Fitch
Co. and Abercrombie & Fitch Stores, Inc. (collectively, “A&F”). (Dkt. 5
at 9-10.) Pending is defendants’ motion for summary judgment. (Dkt.
37.) Because there is no genuine issue of material fact that plaintiff
consented to receive these messages, the motion is granted.

I.

Background
On April 24, 2016, plaintiff filed a putative class action alleging

that A&F, along with up to twelve John Doe defendants, violated the
TCPA by sending her and other customers four unsolicited text
messages between April 14 and April 22, 2016. (Dkt. 5.) On April 14,
2016, she received this text message on her cellular phone:
a&fkids: Reply confirms u agree to 15 markting msgs/mnth via
automatd system & Terms: http://bit.ly/kidsTs Consent not
required 4 purchase. Msg&DataRatesMayAply
(Id. at 9.)
On April 15, 2016, she received this message on her cellular
phone:
a&f kids: We have a new program! Text JOIN to 23543 to get an
awesome surprise offer & to receive kids texts! See new Terms:
http://bit.ly/kidsTs STOP to cancel
(Id.)
On April 22, 2016, she received these two messages on her cellular
phone:
a&f kids: Text JOIN to 23543 to get an awesome surprise offer &
to receive kids texts from our new program! See new Terms:
http://bit.ly/kidsTs STOP to cancel

2

a&f kids: Reply confirms u agree to 15 markting msgs/mnth via
automatd system & Terms: http://bit.ly/kidsTs Consent not
required 4 purchase. Msg&DataRatesMayAply
(Id.)
The messages each came from a short-code telephone number,
348-24, controlled by A&F. Plaintiff contends that she did not consent
to receive those text messages, and that their transmission violated the
TCPA.
On July 15, 2016, defendants filed a motion to dismiss this case on
the grounds that plaintiff consented to receive the text messages set
forth above. (Dkt. 17.) Following oral argument on December 13, 2016,
the Court converted the motion into one for summary judgment and
granted plaintiff’s motion for leave to take discovery regarding her
purported consent to receive the text messages.

On April 17, 2017,

defendants filed a renewed motion for summary judgment. (Dkt. 37.)
Following discovery, the parties agree that on December 4, 2015,
at 1:34 P.M., plaintiff texted the keyword “Style” to 348-24. (Dkt. 37 at
21, Dkt. 42 at 5-6.) Plaintiff had shopped at various A&F brands and
used discounts from those stores before. (Dkt. 37-2 at 7-8.) Her text

3

was in response to a promotion on the Abercrombie Kids website.1 The
promotional webpage read:
we’ve got something for you
text style
to 34824
for a surprise offer and a&f texts*
*Msg & Data Rates May Apply. By texting the key word to
34824, you consent to receive up to ten (10) marketing text
messages per calendar month that may be sent via an
automated system. Consent to receive texts at the mobile
number provided is not a condition of purchasing goods or
services. Text or reply STOP to cancel, and HELP for help.
See TEXT TERMS & PRIVACY POLICY
(Dkt. 37-4 at 15 (emphasis and capitalization in original).) Plaintiff
claims that she does not remember seeing the disclaimer at the time.
(Dkt. 42-1 at 26.)
The parties differ on what happened next. A&F provides internal
records of its communications with plaintiff showing five seconds after
plaintiff sent the “Style” text at 1:34 P.M., A&F’s automated system
responded with this message:

A&F’s brands and promotions use a variety of capitalizations and grammatical
conventions apart from standard English. Those conventions will be mirrored when
quoting materials from the record, but the Court will otherwise use standard
English rules, such as capitalizing formal nouns.
1

4

a&fkids: Reply YES to confirm u agree to marketing txts via
automated system at # provided. Consent 2 receive txts not
required 4 purchases.
Msg&DataRatesMayAply
(Dkt. 38 at 2.)

Twelve seconds later, A&F’s records show plaintiff

responding with “Yes.” (Id.) Two seconds after that, the records show
that A&F sent this message:
a&fkids: You’re signed up to texts!
Msg&DataRatesMayApply. Receive up to 10 ongoing
marketing messages per calendar month. Reply STOP to
stop, HELP for help.
(Id.) A&F also provides records from its digital marketing database
confirming that the initial “Style” text and the follow-up “Yes” text
came from plaintiff’s phone number ending in -4811, and that the four
texts at issue in this lawsuit were sent to her phone number in April
2016. (Dkt. 39.)
Plaintiff, on the other hand, contends that she only sent one text,
“Style,” to A&F on December 4, 2016. (Dkt. 42 at 15-20.) In support of
this, she provides unauthenticated records from her cellular service
provider, AT&T.

(Dkt. 42-2.)

The records show that at 1:34 P.M.,

plaintiff texted 348-24, and that 348-24 responded six seconds later.

5

(Id. at 2.)2

The records do not show any further communication

between plaintiff and A&F on that day, nor do they show the content of
the text messages sent between plaintiff and A&F. They do show that
four additional text messages were sent from the A&F shortcode to
plaintiff in April 2016. (Id. at 3-6.)
Defendants, in their renewed motion for summary judgment,
argue that plaintiff’s initial text message of “Style,” coupled with the
disclosures on the webpage containing the “Style” offer, constituted
prior express written consent within the meaning of the TCPA. Even if
it did not, they offer the second set of December 2015 texts explicitly
consenting to receive up to ten text messages per month as the consent
required under the TCPA. Plaintiff, in turn, argues that her phone
records show the second set of texts was never sent, and that the first
set of texts are insufficient to establish her express prior written
consent.
Supplemental oral argument was held on this motion on October
4, 2017.

The AT&T records list all times as “UTC,” or Coordinated Universal Time.
Accordingly, the records list the initial text from plaintiff at 21:34:20 UTC and the
response at 21:34:26. (Dkt. 42-2 at 2.)

2

6

II.

Legal Standard
Summary judgment is proper where “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may
not grant summary judgment if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court “views the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys.,
Inc. v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)).
III. Analysis
The TCPA bars any call, including a text message:
[T]hat includes or introduces an advertisement or
constitutes telemarketing, using an automatic telephone
dialing system or an artificial or prerecorded voice, to any of
the lines or telephone numbers described in paragraphs
(a)(1)(i) through (iii) of this section, other than a call made
with the prior express written consent of the called party.

7

47 C.F.R. § 64.1200(a)(2); see also Keating v. Peterson’s Nelnet, LLC, 615
F. App’x 365, 370 (6th Cir. 2015) (noting that the Federal
Communications

Commission

has

determined

that

the

TCPA

encompasses text messages to wireless numbers).
Prior express written consent “means an agreement, in writing,
bearing the signature of the person called that clearly authorizes the
seller to deliver or cause to be delivered to the person called
advertisements

or

telemarketing

messages

using

an

automatic

telephone dialing system or an artificial or prerecorded voice, and the
telephone

number

to

which

the

signatory

authorizes

such

advertisements or telemarketing messages to be delivered.” 47 C.F.R. §
64.1200(f)(8).
Defendant seeks summary judgment on the grounds of the
affirmative defense of consent.

“Where a defendant seeks summary

judgment on an affirmative defense on which it will bear the ultimate
burden of proof at trial, summary judgment is proper only if the record
shows that [the defendant] established the defense so clearly that no
rational jury could have found to the contrary.” Snyder v. Kohl's Dep't

8

Stores, Inc., 580 F. App'x 458, 461 (6th Cir. 2014) (internal quote marks
and citation omitted).
This motion rests primarily on one issue: how to resolve the
conflict between A&F’s authenticated business records and plaintiff’s
unauthenticated cell phone records. A&F objects to plaintiff’s records
based on their lack of authentication, and argues that they “fall
woefully short of admissible evidence that disputes that Plaintiff
solicited and consented to receive text messages from Abercrombie.”
(Dkt. 37 at 32.) Plaintiff states that she obtained her cell phone records
“by subpoena directly from AT&T.” (Dkt. 42 at 18.) Other than that
cursory assertion, at the time of the response, plaintiff provided no
basis for the authenticity or completeness of the records attached to her
response.

Plaintiff moved to file the affidavit AT&T’s custodian

originally provided with her phone records, which she did not provide to
defendants or to the Court.

(Dkt. 46.)

The Court has denied that

motion in an order issued contemporaneously with this one. (Dkt. 52.)
Fed. R. Civ. P. 56(c) permits a party to “object that the material
cited to support or dispute a fact cannot be presented in a form that
would be admissible in evidence.” This 2010 amendment to the Federal
9

Rules of Civil Procedure did away with the old, stricter authentication
requirement of Fed. R. Civ. P. 56(e). See Ganesh v. United States, 658
Fed. Appx. 217, 220 (6th Cir. 2016) (describing the requirements of the
pre-amendment Rule 56(e)); Fed. R. Civ. P. 56(c) advisory committee’s
note to 2010 amendment.

However, “[o]nce an objection is properly

made, the proponent must ‘show that the material is admissible as
presented or . . . explain the admissible form that is anticipated.’”
Mangum v. Repp, 674 Fed. Appx. 531, 536-37 (6th Cir. 2017) (citing Fed
R. Civ. P. 56(c) advisory committee’s note to 2010 amendment).
Plaintiff did not respond in her motion to A&F’s objection that the
unauthenticated cell phone records are inadmissible. At oral argument,
plaintiff argued that under Fed. R. Evid. 803(6)(D), she could be
considered the custodian of AT&T’s business records, because they are
records of her activity. However, a custodian must “be familiar with the
company’s recordkeeping practices.” United States v. Jenkins, 345 F.3d
928, 935 (6th Cir. 2003).

Plaintiff is not an AT&T employee, and has

presented no evidence or argument that she is familiar with AT&T’s
recordkeeping practices and could certify the completeness and
accuracy of the records she provided. Because plaintiff’s phone records
10

are inadmissible, the Court cannot consider the unauthenticated phone
records she attaches in support of her motion.
Plaintiff discarded the cell phone she used when she received the
text messages at issue in this case roughly three months after litigation
began due to screen damage, and she did not retain the relevant text
message history that could support her claim. (Dkt. 42-1 at 9.)3
With the exclusion of plaintiff’s cell phone text messaging records,
A&F has presented evidence that plaintiff voluntarily texted the word
“Style” to shortcode 34828 on December 4, 2015, and in response to a
single permissible text message asking her to opt in to receiving up to
ten text messages a month, she replied “Yes.” In April 2016, plaintiff
received four text messages from the same shortcode regarding updates
to the texting program she had joined.
Plaintiff challenges the veracity of A&F’s records by citing a
portion of the deposition of Andy Kennemer, A&F’s Vice President of
Omnichannel Marketing. During his deposition, Kennemer was asked
about what he sees or knows regarding successful transmission

Plaintiff’s records also fail to show the content of the communications between her
and A&F, making it unclear which text messages the records actually purport to
show.
3

11

whenever A&F sends or receives a text message using its mobile
messaging platform, called Hello World.
A. Okay. So I’m familiar with part of that transmission
process to the point where when a message is initiated on
the Hello World platform or from Abercrombie, that it
normally travels via an aggregator.
Q. Okay.
A. And then it is delivered to the wireless carrier.
Q. Okay.
A. I have seen data relative to the point where the
aggregator is documenting receipt and transmission of
messages to a particular phone number. In this case, the
Plaintiff’s phone number. Beyond that, I have no visibility
from the point of the aggregator to the end user device or the
wireless carrier. It’s their responsibility to, I presume,
deliver that message at the end.
(Dkt. 42-5 at 22.) Plaintiff argues that, since mobile carriers actually
transmit messages, and aggregators are “mere middle-men between
content providers and mobile carriers,” the best record of whether a text
message was actually sent is a mobile carrier’s records. (Dkt. 42 at 18.)
However, as set forth in the Court’s order denying leave to file the
affidavit that was not included with her cell phone records (Dkt. 52),
12

plaintiff has failed to provide authenticated records from her carrier,
and the only evidence available are the logs A&F has provided.
Plaintiff also argues that “Defendants could not deny that Hello
World might produce erroneous results or false positives.” (Id. at 19.)
This statement mischaracterizes Kennemer’s testimony.

Defense

counsel asked Kennemer repeatedly if Kennemer was aware of any
errors in the Hello World record keeping system, and Kennemer said
that he had no knowledge of any errors in any column in that system.
(Dkt. 42-5 at 24.) Kennemer’s testimony is not an admission that Hello
World might produce erroneous results or false positives.

Even if

Kennemer had made that admission, it would still be insufficient, on its
own, to call the reliability of the Hello World records into doubt.
A&F’s records match plaintiff’s allegations precisely regarding the
April 2016 texts, and she does not now dispute at least the first two text
messages sent and received on December 4, 2015. To create some issue
of material fact as to whether the second text message exchange on that
date, in which defendant’s admissible records reveal she consented to
receive up to ten texts per month, is accurate, plaintiff must provide

13

some evidence showing that the Hello World system actually could have
generated a nonexistent exchange between her and A&F.
Even if the system generated the “You’re signed up to texts!”
confirmation without sending it, plaintiff has offered no evidence
explaining how the “Yes” text from her phone that triggered the
confirmation, responding to the permissible text message she concedes
she did receive, could have been falsely generated. Because she has not
provided her text message history from her phone or admissible records
of her text messaging activity, the only evidence plaintiff has is her own
deposition testimony. During her deposition, plaintiff stated only that
she did not recall any text messages sent between her and A&F in
December 2015, but she did not affirmatively deny that all four
messages were sent. (Dkt. 42-1 at 23-24, 29.) Plaintiff testified that it
was possible she deleted the December 2015 text messages. (Id. at 29.)
The record in this case contains unambiguous and uncontroverted
evidence that plaintiff expressly consented to receive up to ten
marketing text messages per month on December 4, 2015. Plaintiff’s
available evidence does not contradict that fact, and her testimony
precludes her from arguing that she did not consent to receive the text
14

messages at issue in this lawsuit. There is no genuine issue of material
fact, based on the evidence available to the Court, as to whether
plaintiff consented to receive the April 2016 marketing text messages
from A&F.

Accordingly, summary judgment must be granted to

defendants.4
IV.

Conclusion

For the reasons set forth above, it is hereby ordered that:
Defendant’s

motion

for

summary

judgment

(Dkt.

37)

is

GRANTED; and
This case is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Dated: November 13, 2017
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

The parties disagree about the interpretation of In the Matter of Rules and
Regulations Implementing the Tel. Consumer Protection Act of 1991, 30 FCC Rcd.
7961 (2015), and whether an exchange consisting only of the first two messages sent
on December 4, 2015, coupled with the disclosures on A&F’s website, would be
sufficient to establish plaintiff’s prior express written consent to receive further text
messages. However, because the record shows that A&F received subsequent
express written consent for up to ten text messages per month after those first two
text messages were sent, the Court declines to reach the merits of this argument.
4

15

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on November 13, 2017.
s/Shawna Burns
SHAWNA BURNS
Case Manager

16