United States District Court, E.D. Pennsylvania
LYNNE WINNER and DESTINY JENNINGS, on their own behalf and on behalf of all others similarly situated
KOHL'S DEPARTMENT STORES, INC.
R. Padova, J.
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).
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.)
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.
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.)
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.)
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.)
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,
The Parties' Stipulation
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 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.
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
7. The messages sent to and received by Ms. Winner appeared
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
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 ...