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Winner v. Kohl's Department Stores, Inc.

United States District Court, E.D. Pennsylvania

August 17, 2017

LYNNE WINNER and DESTINY JENNINGS, on their own behalf and on behalf of all others similarly situated
v.
KOHL'S DEPARTMENT STORES, INC.

          MEMORANDUM

          John R. Padova, J.

         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 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 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 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:
(Image Omitted)
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 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:
(Image Omitted)
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.
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 ...

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