Antitrust Law Daily Wrap Up, PRIVACY—N.D. Ill.: Providing phone number did not establish consent to receive text message ads, (Apr 29, 2015)

By Michael Menzhuber, J.D., LL.M.

A consumer’s claim that a retail clothing store operator violated the Telephone Consumer Protection Act (TCPA), when it sent her an advertisement via text message, survived a motion to dismiss. The federal district court in Chicago denied the motion because there was a factual issue as to whether the consumer had given her prior express consent to receive the text messages advertisement (Zeidel v. YM LLC USA, April 27, 2015, Dow, R.).

Background. YM LLC USA (YM) owns and operates several retail clothing stores which include the Mandee brand clothing store (Mandee). While shopping at Mandee, Frieda Zeidel provided the sales associate with her cellular phone number. This number was added to YM’s customer maintenance database of personal information voluntarily provided by customers. A few weeks later, YM sent a text message advertisement to certain customers, including Zeidel, whose information was in the database.

Zeidel filed a complaint that YM, as the owner and operator of Mandee, violated the TCPA by sending her an advertisement via text messaging. YM moved for summary judgment on the basis that Zeidel had given her prior express consent to receive the text message.

In support of its motion, the marketing director for Mandee provided a declaration claiming that Zeidel’s cellular phone number could only have ended up in the company’s database if she voluntarily provided her number to a sales associate. The Mandee’s store manager provided a similar declaration and added that sales associates were trained to ask customers whether they would like to receive text message advertisements prior to asking for a cellular phone number.

Zeidel admitted that she voluntarily provided her cellular phone number to the sales associate but claimed that she was not told it would be used to send her text message advertisements. She pointed to an admission by the store manager that sales associates did not have a script to prompt them while requesting personal information from customers. Therefore, according to Zeidel, it was possible that a sales associate could ask for a cellular phone number without first getting the customer’s acknowledgment that, by provided the cellular phone number, the customer was consenting to receive text message advertisements.

Consent. The court noted that consent is limited in scope to the purpose for which it was originally granted. As such, it determined that consent is limited to the facts surrounding the consent and that Zeidel’s simply providing a phone number to the Mandee’s sales associate did not constitute carte blanche consent to receive marketing messages of any kind from YM.

Mandee’s store manager admitted that sales associates did not have a script to prompt them while requesting personal information. Since the absence of such a script could create the possibility that a sales associate could forget to obtain a customer’s express consent to receive text message advertisements, and the conversation between Zeidel and the Mandee sales associate at the time Zeidel gave the sales associate her phone number was not preserved, a factual issue remained as to whether Zeidel consented to receiving text message advertisements. The court was, therefore, unable to resolve the issue on summary judgment.

The case is No. 13-cv-6989

Attorneys: Evan M. Meyers (McGuire Law, PC) for Freida Zeidel. Christopher A. Mitchell (Dickinson Wright PLLC), and Hal R. Morris (Arnstein & Lehr, LLP) for YM LLC USA.

Companies: YM LLC USA

Cases: Advertising Privacy IllinoisNews