Checked Box Not Enough To Prove Consent To Receive Text Messages

In Soukhaphonh v. Hot Topic, Inc. (decided on Feb. 8, 2018 in the Central District of California), a federal judge denied summary judgment to an Internet retailer fighting a claim of illegal text messaging. The judge allowed the case to move forward despite the retailer’s evidence that the plaintiff submitted a purchase containing her cell phone number and a checked box saying “Yes, I want to receive text messages about special events and offers."

On May 26, 2015, Plaintiff Diana Soukhaphonh visited Hot Topic, a clothing website, and purchased merchandise as a “guest.” At that time, the website’s purchase checkout form for guest transactions included a pre-checked box containing the sentence quoted in the prior paragraph of this article. Although pre-checked boxes are not always treated the same as one that a consumer affirmatively checks, this issue was not discussed by the judge.

Hot Topic sent two text messages to the plaintiff before she texted back a stop request.  She filed a class action lawsuit against Hot Topic, alleging that the solicitation violated the Telephone Consumer Protection Act, which provides a penalty of $500 for each unconsented, automated text message. 

After discovery, Hot Topic moved for summary judgment, contending the plaintiff opted in to receive text message alerts by failing to uncheck the box during her transaction.  The plaintiff, on the other hand, testified that the checkout form she submitted did not include a checkbox, “pre-checked or otherwise.”  Therefore, the plaintiff argued that she did not “consent, agree, or otherwise express any desire” to receive text messages from Hot Topic.

In sorting out the diametrically opposed allegations, the judge refused to rule out the possibility that Hot Topic employees had altered the company’s records (not necessarily deliberately) at some point in the past, which could have yielded a false opt-in request.  The judge denied Hot Topic’s summary judgment motion, stating, “Plaintiff’s attestation that she did not opt-in to text message alerts is not blatantly contradicted by the record, so that no reasonable jury could believe it. There is a genuine dispute of material fact regarding whether Plaintiff opted-in to receiving text messages during her May 26, 2015 online transaction.” 

TAKEAWAY: Hot Topic will now have to settle the case with the plaintiff’s attorneys (who will surely demand significant attorneys’ fees) or risk going to trial on the issue of consent.  The plaintiff’s attorneys have not yet moved for class certification, a motion that will determine whether Hot Topic is vulnerable to a couple of thousand dollars on the plaintiff’s individual claims or millions of dollars for the claims of the class of plaintiffs.

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