WINNER et al v. KOHL'S DEPARTMENT STORES, INC.

Filing 46

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE JOHN R. PADOVA ON 8/17/17. 8/17/17 ENTERED AND COPIES EMAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LYNNE WINNER and DESTINY JENNINGS,
on their own behalf and on behalf of all others
similarly situated
v.
KOHL’S DEPARTMENT STORES, INC.

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CIVIL ACTION

No. 16-1541

MEMORANDUM
Padova, J.

August , 2017

Defendant, Kohl’s Department Stores, Inc. (“Kohl’s”) moves to dismiss the
First Amended Complaint (“FAC”) filed by Lynne Winner and Destiny Jennings under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief
may be granted or, in the alternative, under Rule 12(b)(1) for lack of standing/subject
matter jurisdiction.

The case is filed as a class action alleging that Kohl’s sent

unauthorized autodialed telemarketing text messages to Plaintiffs’ cellular telephones
in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the
“TCPA”), and its implementing regulations.

For the following reasons, the Motion is

granted and the FAC is dismissed pursuant to Rule 12(b)(1).
I.

FACTS
A.

The FAC

In the FAC, Plaintiffs allege that Plaintiff Lynne Winner (“Winner”) is a
consumer residing in Collegeville, Pennsylvania.

(FAC ¶ 6.)

Plaintiff Destiny

Jennings (“Jennings”) is a consumer residing in Jacksonville, Florida.

(Id. ¶ 7.)

Kohl’s is a Delaware corporation headquartered in Menomonee Falls, Wisconsin. (Id.
¶ 8.)

In the four years prior to the filing of Winner’s and Jennings’s initial
Complaint, Kohl’s began sending both Plaintiffs telemarketing text messages to their
cellular telephones.

(Id. ¶¶ 22, 27-28, 30-31, 46-51.)

Kohl’s had advertised to

consumers the ability to earn frequent-shopper “points” by downloading its mobile
application and texting the word “APP” to receive instructions regarding the
application. (Id. ¶ 23.) The bottom of the advertisement contained a “disclaimer”
which Plaintiffs characterize as “barely visible and unreadable.” (Id. ¶ 26.)
Plaintiff Winner texted the “APP” message to Kohl’s on October 24, 2014, and,
within 15 minutes, Kohl’s sent her a text message (1) advertising its mobile
application and its “Yes2YouRewards” promotions program, and (2) directing her to
click on a link in the text message “[t]o enroll in Yes2You.” (Id. ¶ 27.) It then sent a
separate text message advertising its “Mobile Sale Alerts” program, directing her to
text “Save30” to participate in “saving sent straight to your phone!”

(Id. ¶ 28.)

Shortly thereafter, Kohl’s received a text message from Winner’s cellular telephone
number stating “SAVE30.” (Id. ¶ 29.) It then began sending Winner five to seven
text messages a month stylized as “KohlALERTS.” (Id. ¶¶ 30-31.) Winner alleges
that she “repeatedly requested that Kohl’s stop sending messages to her, but her
requests went unheeded.” (Id. ¶ 32.) She also visited a Kohl’s store and asked an
employee to get the text messages to stop, but the Kohl’s employee was unable help
make the text messages stop.

(Id. ¶ 33.)

On March 24, 2016, after receiving a

“STOP” message from Winner’s phone, Kohl’s stopped sending her text messages.
(Id. ¶ 34.)

Winner alleges that she did not intentionally sign up to receive

Defendant’s autodialed telemarketing text messages, Kohl’s never obtained her signed

2

written consent to send her the texts, and Kohl’s never provided her with any
disclosures required for a valid electronic signature. (Id. ¶¶ 37-39.)
On November 22, 2014, Kohl’s received a message stating “SAVE07” from
Plaintiff Jennings’s cellular telephone number.

(Id. ¶ 46.)

“SAVE07” is one of

Kohl’s “calls to action” that initiates the sending of text messages to consumers. (Id.
¶ 47.) Plaintiffs allege that, as part of Defendant’s corporate marketing strategy, it
“routinely used such ‘calls to action’ that contained small print.” (Id. ¶ 48.) After
receiving the “SAVE07” message from Jennings’s cellular telephone number, Kohl’s
sent Jennings a text message “Welcome to Kohl’s Mobile Alerts! . . . Get 7 msgs per
month.

Reply HELP for HELP.

STOP to cancel.”

(Id. ¶ 49.)

Kohl’s then sent

Jennings a separate text message advertising sales promotions on its website. (Id. ¶
50.)

Thereafter, Kohl’s sent Jennings approximately seven messages a month

advertising various sales promotions. (Id. ¶ 51.)
Plaintiffs allege that the text messages Kohl’s sent them constituted
telemarketing as they advertised sales and promotions available at its retail stores and
on its website. (Id. ¶¶ 40, 57.) The messages were automated, part of Defendant’s
corporate direct marketing strategy, and were not individualized to the Plaintiffs. (Id.
¶¶ 41-43, 58-59.)

The messages were sent using an automatic telephone dialing

system, which has the capacity to store or produce telephone numbers to be texted,
using a random or sequential generator, or from a database of numbers, and to text
thousands of such numbers without human intervention. (Id. ¶¶ 44-45, 60, 64-68.)
“Defendant acquired Plaintiffs’ numbers, stored them in a databased connected to its
telephonic or computer system, and then used its system to send identical text

3

messages to Plaintiffs’ and thousands of other consumers’ cellular telephones
automatically and without human intervention.” (Id. ¶ 63.) No human was involved
in the sending of Defendant’s text messages to Plaintiffs, who received identical text
messages which were the same messages received by thousands of other consumers
who were enrolled in Defendant’s telemarketing text messaging campaign. (Id. ¶ 64.)
Plaintiffs assert that they were annoyed by Defendant’s messages and
considered them spam. (Id. ¶¶ 35, 54.) They further allege they were never clearly
and conspicuously informed that they were enrolling to receive automated
telemarketing text messages to their cellular telephones.

(Id. ¶¶ 36, 55.)

Neither

Plaintiff intentionally signed up for Defendant’s telemarketing text messages, the
messages came as a surprise and inconvenience, and became a concern to Plaintiffs.
(Id. ¶¶ 37, 56.)

They assert that Kohl’s never obtained either Plaintiff’s signed,

written consent to receive telemarketing text messages, and never provided Plaintiffs
with any disclosures required for a valid electronic signature. (Id. ¶¶ 38-39, 61.)
B.

The Parties’ Stipulation

Following Defendant’s filing of a Motion and a supporting declaration to
dismiss the original Complaint in this matter for lack of standing, and the scheduling
of an evidentiary hearing thereon, the parties entered into a Stipulation of Facts
(Docket Entry 25 (“Stipulation”)) in which they agreed as follows:
1.

On Oct. 24, 2014, at 2:05 PM, Kohl’s received an incoming text message,

containing the word “APP,” from Ms. Winner’s mobile phone number.
2.

Kohl’s had advertised to consumers the ability to earn frequent-shopper

“points” by downloading Kohl’s mobile application and requested that consumers

4

text the word “APP” to Kohl’s to receive instructions as to how to download the
mobile application.
3.

The following is a sample advertisement 1 from Kohl’s that asked

consumers to text the word “APP” to Kohl’s to receive these instructions:

4.

In response to the “APP” message from Ms. Winner’s phone, within 15

minutes of receipt of that message, Kohl’s transmitted two text messages to Ms.
Winner’s phone number, stating as follows:
KOHLS: Thanks for texting! To enroll in Yes2You Rewards click the link
download the Kohl’s App then sign in or create an account.
http://bit.ly/1CXVMLK
***
KohlsALERTS: Get more savings sent straight to your phone! Text SAVE30 to
opt in to our Mobile Sale Alerts. Receive 5-7 msgs/mon. Msg&Data Rates May
1

The small print at the bottom of the advertisement states:

“You will receive two to three auto-dialed text messages sent to your mobile
number. Participation not required to make a purchase. You must be 18 years or
older to text Kohl’s. Reply HELP for help, reply STOP to cancel. Msg&Data
Rates May Apply. See Kohl’s.com/mobile for mobile Terms and Conditions.”
The Stipulation does not state the original font size of the advertisement.
5

Apply.
5.

Shortly after Kohl’s sent the second message, Kohl’s received from Ms.

Winner’s phone a text message reading “SAVE30.”
6.

After receiving that “SAVE30” message, Kohl’s commenced sending text

messages to Ms. Winner’s phone at the rate of five to seven messages per month.
7.

The messages sent to and received by Ms. Winner appeared as follows:

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8.

On at least one occasion, Ms. Winner redeemed a sales offer transmitted to

her by text message, receiving $10 off of a $25 purchase on or about November 9,
2014.
7

9.

Ms. Winner contends that she had repeatedly requested that Kohl’s stop

sending messages to her, but her requests went unheeded.
10.

On March 24, 2016, Kohl’s received from Ms. Winner’s phone a text

message reading “STOP.” Kohl’s has no record of any other request allegedly
made by Ms. Winner for Kohl’s to stop sending text messages to her phone
number.
11.

Within minutes of receiving that message, Kohl’s sent Ms. Winner’s

phone a final text message confirming that she had unsubscribed from the text
message program.
12.

Kohl’s has sent Ms. Winner’s phone no text messages since March 24,

2016.
13.

Ms. Winner contends that she was annoyed at receiving the messages and

considered them spam.
14.

On November 22, 2014, at 11:49 AM, Kohl’s received an incoming text

message, containing the term “SAVE07,” from Ms. Jennings mobile phone
number.
15.

“SAVE07” is one of Kohl’s “calls to action” that initiates the sending of

text messages.
16.

The following are examples of calls to action that featured the keyword

SAVE07:

8

9

17.

In response to the “SAVE07” message from Ms. Jennings’ phone, within

15 minutes of receipt of that message, Kohl’s transmitted two text messages to
Ms. Jennings’ phone number, stating as follows (or substantially similar thereto):
KohlsAlerts: Welcome to Kohl’s Mobile Alerts! Keep up w/ Kohl’s savings.
Msg&Data Rates May Apply. Get 7 msgs per month. Reply HELP for HELP.
STOP to cancel.
***
KohlsAlerts: Sign-up offer: Get 15% off at Kohls.com. Use code SMS2145 until
12/06. Terms: www.kohls.com/sms. Reply HELP for HELP STOP to cancel.
18.

Kohl’s commenced sending Ms. Jennings approximately seven messages

per month. The messages were identical to or substantially similar to the
messages received by Ms. Winner.
19.

Kohl’s never received a “STOP” message from Ms. Jennings’ phone.

20.

Kohl’s ceased sending text messages to Ms. Jennings’ phone on April 4,

2016, the date on which she filed the Complaint in this action.
21.

Ms. Jennings contends that she was annoyed at receiving the messages and

considered them spam.
(Stipulation ¶¶ 1-21.)
II.

STANDARD OF REVIEW
The jurisdictional portion of Kohl’s Motion seeks dismissal of the FAC pursuant to

Fed. R. Civ. P. 12(b)(1) because Plaintiffs lack standing.2 ‘“A motion to dismiss for want of

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We review Defendant’s Rule 12(b)(1) argument first. See Curtis v. Unionville-Chadds
Ford Sch. Dist., Civ. A. No. 12-4786, 2013 WL 1874919, at *3 (E.D. Pa. May 1, 2013) (“When a
motion under Rule 12 is ‘based on more than one ground, the court should consider the Rule
12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter
jurisdiction, the accompanying defenses and objections become moot and do not need to be
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standing is . . . properly brought pursuant to Rule 12(b)(1), because standing is a jurisdictional
matter.’” Constitution Party of Pa. v. Aichele, 757 F.3d 347, 357 (3d Cir. 2014) (alteration in
original) (quoting Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007)). It is the
plaintiffs’ burden to prove standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
In order to survive a motion to dismiss, Plaintiffs must demonstrate that they possess the requisite
stake in the outcome of their suits to have standing by showing they have “(1) suffered an injury
in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547
(2016) (stating these three elements are the “irreducible constitutional minimum” of standing)
(citing Lujan, 504 U.S. at 560-61); see also Hollingsworth v. Perry, 133 S. Ct. 2652, 2661
(2013); Constitution Party of Pa., 757 F.3d at 360. An injury-in-fact requires “an invasion of a
legally protected interest which is (a) concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and
citations omitted); Spokeo, 136 S. Ct. at 1545 (“[T]he injury-in-fact requirement requires a
plaintiff to allege an injury that is both concrete and particularized.” (emphasis in original).)
Whether a motion raises a “facial” attack or a “factual” attack on standing determines the
burden of proof and standard of review. Constitution Party of Pa., 757 F.3d at 357-58 (citing In re
Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir.
2012)). A facial attack considers only “a claim on its face and asserts that it is insufficient to
invoke the subject matter jurisdiction of the courts” due to some jurisdictional defect. Id. at 358.
This type of attack occurs prior to the filing of an answer or a challenge to the factual allegations
of a complaint. Id. (citing Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 889-92 (3d
determined.’”) (quoting Jeffrey Banks, Ltd. v. Jos. A. Bank Clothiers, Inc., 619 F. Supp. 998,
1001 n.7 (D. Md. 1985)).
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Cir. 1977)). It is judged under the same standard as a motion to dismiss pursuant to Rule
12(b)(6). Id. However, a factual attack concerns “‘the actual failure of a plaintiff’s claims to
comport [factually] with the jurisdictional prerequisites.’” Id. (alteration in original) (quoting
CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008)). In such a case, a court may weigh the
alleged facts, and consider evidence outside the pleadings. Id. In deciding a factual attack, the
non-moving party’s allegations receive no presumption of truthfulness. Mortensen, 549 F.2d at
891. “[P]laintiff has the burden of persuasion to convince the court it has jurisdiction.” Gould
Elec., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000) (citation omitted).
III.

ANALYSIS
Kohl’s Motion asserts a factual attack. It argues, based on the FAC and the Stipulation,

that Plaintiffs did not suffer an injury in fact as a result of receiving the autodialed telemarketing
text messages from Kohls’ because they asked Kohl’s to send them the messages that they
received. Defendant argues that its calls to action fully comply with the Federal Communications
Commission’s (“FCC”) guidance on what constitutes written consent under the TCPA. Because
Plaintiffs admit in the FAC and in the Stipulation that they consented to receiving the messages,
Kohl’s argues they have suffered no injury-in-fact to support their standing to bring their claims.
Congress enacted the TCPA “to protect individual consumers from receiving intrusive and
unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013) (citing Mims
v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372-73 (2012)); see also Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009) (stating that “the TCPA was enacted in response
to an increasing number of consumer complaints arising from the increased number of
telemarketing calls” (citing S. Rep. No. 102-178 at 2 (1991), reprinted in 1991 U.S.C.C.A.N.
1968)). The TCPA makes it unlawful for any person “to make any call . . . using any automatic

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telephone dialing system . . . to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio common carrier service”
without “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). A text
message has been held to be a “call” within the meaning of the TCPA. Gomez v. CampbellEwald Co., 768 F.3d 871, 874 (9th Cir. 2014) (citing Satterfield, 569 F.3d at 952.) Thus, to state
a TCPA claim, plaintiff must allege that “(1) the defendant called [or texted] a cellular telephone
number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express
consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (citing
47 U.S.C. § 227(b)).
“Congress authorized the [FCC] to implement rules and regulations enforcing the TCPA.”
Gager, 727 F.3d at 268 (citing 47 U.S.C. § 227(b)(2)). The implementing regulation defines the
term “prior express written consent” as follows:
The term 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.

(i) The written agreement shall include a clear and conspicuous
disclosure informing the person signing that:

(A) By executing the agreement, such person authorizes the
seller to deliver or cause to be delivered to the signatory
telemarketing calls using an automatic telephone dialing
system or an artificial or prerecorded voice; and

(B) The person is not required to sign the agreement (directly or
indirectly), or agree to enter into such an agreement as a condition
of purchasing any property, goods, or services.

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(ii) The term “signature” shall include an electronic or digital form of
signature, to the extent that such form of signature is recognized as a
valid signature under applicable federal law or state contract law.
47 C.F.R. § 64.1200(f)(8) (emphasis added).
The FCC issued a Report and Order on February 15, 2012 stating that the determination of
whether proper consent is given to receive advertising text messages requires that (1) the consent
was obtained following a clear and conspicuous disclosure of the consequences of providing
consent; and (2) the consent was “obtained without requiring, directly or indirectly, that the
agreement be executed as a condition of purchasing any good or service.” In the Matter of Rules
and Regulations Implementing the TCPA of 1991, 27 FCC Rcd. 1830, 1844 ¶ 33 (F.C.C. Feb. 15,
2012) (quotation omitted). The Report and Order further provides that “consent obtained in
compliance with the E-SIGN Act will satisfy the requirements of our revised rule, including
permission obtained via an email, website form, text message, telephone keypress, or voice
recording.” Id. ¶ 34 (stating that “Allowing documentation of consent under the E-SIGN Act [15
U.S.C. § 7001] will minimize the costs and burdens of acquiring prior express written consent for
autodialed or prerecorded telemarketing calls while protecting the privacy interests of consumers.
Because it greatly minimizes the burdens of acquiring written consent, commenters generally
support using electronic signatures consistent with the E-SIGN Act. We conclude that the ESIGN Act significantly facilitates our written consent requirement, while minimizing any
additional costs associated with implementing the requirement.” (footnote omitted)). The FCC
then reaffirmed, in a Report and Order dated July 10, 2015, that the disclosures necessary as a
precursor to consent “must tell consumers the telemarketing will be done with autodialer
equipment and that consent is not a condition of purchase.”

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In the Matter of Rules and

Regulations Implementing the TCPA of 1991, 30 FCC Rcd. 7961, 8012-13 ¶ 98 (F.C.C. July 10,
2015) (“FCC 2015 Order”).
The E-Sign Act provides that, for any transaction affecting interstate or foreign commerce,
“a signature, contract, or other record relating to such transaction may not be denied legal effect,
validity, or enforceability solely because it is in electronic form.” 15 U.S.C. § 7001(a); see also
Prudential Ins. Co. of Am. v. Prusky, 413 F. Supp. 2d 489, 494 (E.D. Pa. 2005) (“The purpose of
the Act is to protect transactions from legal challenges that are solely based on the electronic form
of the agreement.”); Levy-Tatum v. Navient & Sallie Mae Bank, Civ. A. No. 15-3794, 2016 WL
75231, at *5 (E.D. Pa. Jan. 7, 2016) (“The E-Sign Act simply establishes that contracts and
signatures cannot be denied legal effect merely because they are in electronic form.” (citation
omitted)). The Act contains a provision detailing that, “if a statute, regulation, or other rule of law
requires that information relating to a transaction” be provided to a consumer in writing:
the use of an electronic record to provide or make available (whichever is
required) such information satisfies the requirement that such information be
in writing if—

(A) the consumer has affirmatively consented to such use and has not
withdrawn such consent;

(B) the consumer, prior to consenting, is provided with a clear and
conspicuous statement—

(i) informing the consumer of (I) any right or option of the
consumer to have the record provided or made available on paper
or in nonelectronic form, and (II) the right of the consumer to
withdraw the consent to have the record provided or made
available in an electronic form and of any conditions,
consequences (which may include termination of the parties’
relationship), or fees in the event of such withdrawal;

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(ii) informing the consumer of whether the consent applies (I)
only to the particular transaction which gave rise to the
obligation to provide the record, or (II) to identified categories of
records that may be provided or made available during the course
of the parties’ relationship;

(iii) describing the procedures the consumer must use to
withdraw consent as provided in clause (i) and to update
information needed to contact the consumer electronically; and
(iv) informing the consumer (I) how, after the consent, the
consumer may, upon request, obtain a paper copy of an electronic
record, and (II) whether any fee will be charged for such copy;

(C) the consumer—

(i) prior to consenting, is provided with a statement of the
hardware and software requirements for access to and retention of
the electronic records; and

(ii) consents electronically, or confirms his or her consent
electronically, in a manner that reasonably demonstrates that the
consumer can access information in the electronic form that will be
used to provide the information that is the subject of the consent;

15 U.S.C. § 7001(c)(1) (emphasis added.)
We find that Plaintiff Winner and Plaintiff Jennings expressly consented to receive
Defendant’s autodialed calls to action telemarketing texts. The facts contained in the Stipulation
establish that both Winner and Jennings gave prior express consent under the TCPA through a
method made permissible by the E-Sign Act. Because they consented to receiving the texts,
Plaintiffs can show no concrete and particularized injury-in-fact and thus have not established that
they have standing to pursue the claims asserted in the FAC.
The Stipulation establishes that Winner sent Kohl’s a text message, containing the word
“APP” from her mobile phone number. (Stip. ¶ 1.) Her text was sent in response to an
16

advertisement directing customers to text “APP.” (Id. ¶ 2.) The advertisement stated that, (1) by
doing so, the customer “will receive two to three auto-dialed text messages” to set up their
participation; 3 (2) “Participation is not required to make a purchase;” (3) customers could “Reply
HELP for help, reply STOP to cancel;” (4) message and data rates may apply; and (5) the terms
and conditions of the program were available on Kohl’s website. (Id. ¶ 3.) The advertisement
inviting her to text “APP” also directed Plaintiff to Kohl’s website for the terms and conditions
applicable to the program. (Id.) In response to Winner’s “APP” text, Kohl’s transmitted two
text messages to Winner’s phone number, one of which instructed her to text “SAVE30” if she
wished to participate in the calls to action program, and Kohl’s then received from Ms. Winner’s
phone a text message reading “SAVE30.” (Id. ¶¶ 4-5.) Each telemarketing text Kohl’s sent
thereafter instructed her to text “STOP” if she wished to stop receiving the telemarketing texts.
(Id. ¶ 7.)
We conclude that Winner’s actions enrolling in Defendant’s calls to action program
constituted prior express consent under the TCPA. The “written agreement,” in the form of the
text messages she received after she texted “APP,” included a clear and conspicuous disclosure
informing her that, by sending the authorizing “SAVE30” text she was authorizing Kohl’s to
deliver to her five to seven telemarketing texts each month by an automatic telephone dialing
system. (Id. ¶ 4 (“Text SAVE30 to opt in to our Mobile Sale Alerts. Receive 5-7 msgs/mon.”).)
It also incorporated by reference the terms and conditions of the program. (Id. ¶ 3 (“See
Kohls.com/mobile for mobile Terms and Conditions.”).) These disclosures were sufficient to
3

We note that Plaintiffs argue in their Response that “[t]he APP message from Ms.
Winner authorized Kohl’s to send one (1) response message. . . . However, Kohl’s did not send
one message; it sent two.” (Pls. Resp. at 9 (citing FCC 2015 Order at ¶ 106 n.363). Plaintiffs
argue that Winner did not consent to receiving the second message. This argument contradicts
the Stipulation and is rejected. The parties stipulated that the “APP” message informed the
customer that she would “receive two to three auto-dialed text messages.” (Stip. ¶ 3.)
17

satisfy the requirement of the TCPA implementing regulation that there be “clear and conspicuous
disclosure” that by “executing the agreement such person authorizes the seller to deliver . . .
telemarketing [texts] using an automatic telephone dialing system.”

47 C.F.R. §

64.1200(f)(8)(i)(A). These disclosures also satisfied the requirement that there be a clear and
conspicuous disclosure that a purchase was not necessary to participate in the program. 47 C.F.R.
§ 64.1200(f)(8)(i)(B). (See Stip. ¶ 3.)
The sequence of the texts is important to our analysis. Defendant’s response text was sent
only after Winner’s initial “APP” keyword text. Defendant’s response text required that the
consumer send the “Save30” text before Defendant began to sending autodialed telemarketing
texts. We find that including the words “Terms and Conditions” and the link to the website in the
ad, along with the disclosure in the responsive text that the consumer would receive five to seven
texts per month, is sufficient to provide a consumer with “a clear and conspicuous statement” that
the consumer has consented to receiving autodialed telemarketing texts. Moreover, Defendant’s
second text advised consumers to send the second “Save30” keyword text after the material that
disclosed the terms and conditions were electronically made available to them. (Stip. ¶¶ 3-4.)
Finally, those terms and conditions include a clear and conspicuous statement that consumers will
receive autodialed telemarketing texts and provides instructions how to stop receiving them. (Id.
¶ 3.)
We conclude that the stipulated facts also establish that Winner “signed” the express
written consent agreement in a manner permissible under the E-Sign Act. Winner’s texting
“SAVE30” constituted her electronic signature affirmatively consenting to such use, and was sent
after she was notified of the terms and conditions of the program, including her right to withdraw

18

the consent and the procedures the consumer must use to do so, i.e., text the word “STOP.” 15
U.S.C. § 7001(c)(1)(B)-(C).
Although Winner asserts that she repeatedly asked Defendant to stop sending messages to
her phone, and that those requests went unheeded, she does not specify how she made these
requests other than one visit she made to a Kohl’s store in which she asked an employee
to get the text messages to stop. This action did not comply with the terms and conditions of
the program and is thus insufficient to create an injury-in-fact based on Defendant’s failure to
stop the texts. The parties stipulate that Defendant received a “STOP” text from Winner’s phone
on March 24, 2016, and that Kohl’s has no record of any other request made by Winner for
Defendant to stop sending text messages to her phone number. (Stip. ¶ 10.) They further
stipulate that (1) when Winner followed the prescribed method for stopping the telemarketing
texts, the only additional text she received was a confirmation that she had unsubscribed from the
program and (2) Defendant has sent Winner no other texts. (Id. ¶¶ 11-12.) Accordingly, we find
that Winner’s alleged “repeated” attempts to stop the texts by efforts other than those prescribed
by the program to which she consented are insufficient to establish that she suffered an injury-infact.
Plaintiff Jennings’ experience was similar to that of Winner. Like Winner, she opted into
a Kohl’s text message program by texting a keyword, “SAVE07,” to Kohl’s in November 2014.
(Stip. ¶ 14.) After she texted “SAVE07” to Kohl’s, Kohl’s sent her a confirmation stating that
she would begin receiving seven messages per month, and referring her to the terms and
conditions on Kohl’s website. (Id. ¶ 17.) All messages that Kohl’s sent to Jennings told her she
could “Text ‘STOP’ to stop,” but the parties stipulate that Kohl’s never received a “stop”
message from Ms. Jennings. (Id. ¶¶ 17, 19.) Accordingly, we find that Jennings has failed to

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meet her burden to show injury-in-fact since she too consented to receiving the telemarketing
texts in a manner that complied with the TCPA and E-Sign Act and never asked Defendant to
stop sending her texts in the manner required by Defendant’s terms and conditions. 4
Plaintiffs argue that, under the FCC 2015 Order, Defendant never obtained their express
written consent to send them autodialed telemarketing texts. They assert that the Order permits a
telemarketer to send only one text in response to a customer’s response to a call to action. See
FCC 2015 Order ¶ 106 n.363. 5 Plaintiffs argue that they did not consent to any messages beyond
the first one. They further contend that the first message “did not disclose that (1) subsequent
messages would be automated or (2) that Winner was not required to sign or agree as a condition
of purchasing any of the property, goods, or services.” (Pls.’ Mem. at 11.) They also argue that
the first message did not contain disclosures sufficient to transform any response thereto “into a
4

Because both Plaintiffs consented to receiving the text messages, the United States
Court of Appeals for the Third Circuit’s recent decision in Susinno v. Work Out World Inc., No.
16-3277, 2017 WL 2925432 (3d Cir. July 10, 2017), is inapposite. There, plaintiff brought suit
under the TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), after allegedly receiving a single, unsolicited cell
phone call. Id., at *1. The court held that the allegation was sufficient to state a concrete, if
intangible, harm. Id. at *5. Here, Plaintiffs’ consent requires the opposite conclusion.
5

The footnote cited by Plaintiffs states:

We note that some businesses include, in their call-to-action displays for ondemand texting programs, the small amount of wording necessary to make the
disclosures required by the Commission’s rules concerning prior express written
consent for autodialed or prerecorded telemarketing calls.
See, e.g.,
http://www1.macys.com/shop/couponsdeals (visited Feb. 10, 2015) (disclosures
under “get texts details”: “By texting COUPON from my mobile number, I agree
to receive marketing text messages generated by an automated dialer from Macy’s
to this number. I understand that consent is not required to make a purchase.”).
Our ruling today allows businesses to voluntarily provide these simple disclosures
to consumers in a call-to-action before sending a single on-demand text in
response to a consumer’s request. If the business sends more than a single text
as a response to the consumer, however, our rules require prior express
written consent with the specified disclosures.
FCC 2015 Order ¶ 106 n.363 (emphasis added).
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signature for purposes of the E-Sign Act” because there “was no notice that the consumer was
affirmatively consenting to an electronic signature, no notice that the consumer could obtain a
paper copy of such consent and whether there would be a charge, and no notice that the
consumer could withdraw her electronic signature.” (Id. at 12 (citation omitted).)
Plaintiffs’ reliance on the FCC 2015 Order is misplaced because the events in this case
occurred before that Order was promulgated. The Winner calls to action text was initiated by that
Plaintiff on October 24, 2014. (Stipulation ¶ 1.) The Jennings calls to action text was initiated by
that Plaintiff on November 22, 2014. (Id. ¶ 14.) Plaintiffs offer no explanation of how Defendant
could be bound by an FCC Order that was not in existence at the time Plaintiffs consented to
receive the autodialed telemarketing texts.

Moreover, the FCC 2015 Order clearly permits

subsequent autodialed telemarketing texts after the initial text where businesses obtain the
required “prior express written consent with the specified disclosures.” FCC 2015 Order, at ¶ 106
n.363. As Plaintiffs concede in the Stipulation that they received the disclosures, they have failed
to meet their burden to show they suffered an injury-in-fact even if the FCC 2015 Order applies.
We conclude, accordingly, that Winner and Jennings have failed to satisfy their burden of
showing that they have standing because each suffered an injury-in-fact as a result of Defendant’s
actions that is likely to be redressed by a favorable judicial decision. See Spokeo, 136 S.Ct. at
1547.

Consequently, we grant Defendant’s Motion to dismiss for lack of subject matter

jurisdiction. 6
VII.

CONCLUSION
Plaintiffs’ claims for violation of the TCPA are dismissed under Rule 12(b)(1) because

they have failed to meet their burden to show they have standing to bring their claims. Since
6

Because we grant Defendant’s Motion on this basis, we need not address its Rule
12(b)(6) arguments.
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Plaintiffs have already had a full opportunity to amend their pleading to attempt to establish
standing, and have stipulated to the facts relevant to standing, we find that any further amendment
would be futile. Defendant’s alternative request to strike the class allegations in the FAC is
dismissed as moot.
An appropriate order will be entered granting Defendant’s Motion to Dismiss.
BY THE COURT:

/s/ John R. Padova
John R. Padova, J.

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