Shopper Sues Kohl’s For Spamming Her With Coupons

If you’ve ever requested a mobile coupon via text message, you’re probably aware of the fact that you’re going to end up receiving more than just that one text. As required by law, retailers that offer such coupons must disclose if signing up means getting future messages and offers via text, until you ask for them to stop.

But one Florida woman claims she had no idea about any of this when she requested a mobile coupon from Kohl’s. So now she’s suing.

Gabriela Urias has filed a proposed class-action lawsuit against the retailer, accusing it of “invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion” for sending text messages and coupons she claims she never agreed to receive.

Kohl’s offers shoppers 15% off an online order if they sign up for Kohl’s “mobile sale alerts”. The full terms and conditions state that sending a text to Kohl’s to receive the coupon “includes authorization for Kohl’s to deliver advertising messages using an autodialer… You will get approximately 5-7 messages per month.”

But Urias didn’t read those terms and conditions. She found out about the coupon offer from a blog. The website Don’t Waste Your Money has a post called “15 Stores That Send Coupons Straight To Your Phone Via Text”, which is adapted from a Krazy Coupon Lady post entitled “24 Retailers That Send Coupons Via Text”.

Both posts reference “signing up” for text alerts from various retailers. But Urias went straight to the part that said “Kohl’s will send you a 15% off coupon directly to your phone redeemable at Kohls.com. Text SAVE to 564-57.” So she sent a text and got her coupon, along with a message welcoming her to Kohl’s mobile sales alerts, and instructing her to text STOP if she wanted to opt out.

But then she was dumbfounded when she continued to receive texts. Urias’ lawsuit claims she provided only “limited consent” for a “single-use coupon” and did not intend to sign up for more messages. “By automatically opting in consumers who are merely seeking a coupon, Defendant fails to obtain the requisite express written consent to send these consumers its marketing text message campaigns,” the lawsuit reads.

The Telephone Consumer Protection Act prohibits marketers from “using an automatic telephone dialing system without the recipient’s prior express consent”. Urias complains that Kohl’s is violating that law, arguing that “without their consent, upon receipt of a coupon request, Defendant automatically opts consumers into its text messaging campaigns”.

Kohl’s terms and conditions are clear, and the welcome text was pretty straightforward as well. But since Urias found out about the offer from a blog, which didn’t spell out exactly what she would be signing up for, is it the blog’s fault, Kohl’s fault – or her own?

There’s currently a similar case making its way through a California court, in which a consumer says he heard about a text offer from the A&W fast food chain, via word of mouth. He sent a text to get a coupon, but argued he was never informed that signing up for one text obligated him to receive more. The court denied A&W’s request to throw out the case, stating that although the man “consented to the first text by making the request, that request did not constitute the Prior Express Written Consent needed for the subsequent marketing texts”. Just because A&W spelled out the details in its terms and conditions, it may have run afoul of the law by allowing consumers to sign up without ensuring they actually read those terms and conditions.

Then there are other cases involving consumers who knowingly agreed to the stated terms, signed up for texts, then changed their mind and couldn’t figure out how to unsubscribe. Courts have been much less forgiving in those cases – several of which have involved Kohl’s.

A Pennsylvania woman signed up for Kohl’s texts, but either forgot or misunderstood how to unsubscribe when she no longer wanted them. She claimed she “repeatedly requested that Kohl’s stop sending messages to her” and even asked a Kohl’s employee for help, but the texts kept coming.

A New Jersey woman similarly signed up for Kohl’s texts and wasn’t able to unsubscribe. She texted messages including “I’ve changed my mind and don’t want to receive these anymore”, “Please do not send any further messages” and “I don’t want these messages anymore. This is your last warning!”

Both women sued. But the judges in both cases threw out their complaints, saying it was their own fault for not simply texting back “STOP”, just as Kohl’s instructed them to do.

The Urias case, however, may not be as clear cut. Can you consent to terms that are never actually provided to you? If Urias succeeds in getting her case certified as a class action, thousands or even millions of Kohl’s customers could get a share of any penalty Kohl’s has to pay. Just as long as the judge doesn’t decide to bring the whole case to a “STOP”.

Image source: The Krazy Coupon Lady