Court's Enforcement of Hybrid Clickwrap Agreement to Defeat TCPA Claim Provides Lessons for Marketers

Whenever a marketer faces a class action lawsuit under the Telephone Consumer Protection Act (TCPA), one of the best tools available for defeating the TCPA claim is the “prior express consent” affirmative defense. In Lundbom v. Schwan's Home Service, Inc., prior express consent was a lifesaver, and this case provides marketers with lessons as to what consent-related practices they should consider implementing to increase the likelihood of defeating TCPA claims prior to trial.

Lundbom v. Schwan's Home Service, Inc.

The plaintiff in Lundbom filed a TCPA lawsuit against a meal delivery service, claiming the defendant violated the TCPA by sending the plaintiff numerous text messages advertising meal delivery sales and promotions. The defendant moved to dismiss at the summary judgment stage, asserting the plaintiff had provided express written consent to receive the messages when she created an account on the defendant’s website. On the registration page where plaintiff created her account, she was presented with the option of agreeing to receive communications via the following disclosure:

Stay connected – Receive delivery notifications, important updates and program news sent straight to your phone.

Directly below this disclosure, she was presented with a pre-checked “text message disclosure” box, which stated the following:

You agree and consent via your electronic signature by clicking the check box to receive calls at the provided number which will deliver automated, live and/or prerecorded messages, text messages, and text alerts by or on behalf of Schwan’s Home Service. This agreement is not entered into as a term or requirement of purchase. You will receive recurring messages. Msg & Data Rates May Apply. Mobile Terms: schwans.com/tc. Schwan’s Privacy Policy: schwans.com/privacy. Reply HELP for help. Reply STOP to cancel.

The plaintiff claimed she had not provided her express written because:

• 1) The “text message disclosure” provided no explicit notice that she would receive marketing messages and, instead, only notified her that she would receive “important updates and program news,” which she claimed only included informational messages; and
• 2) The “text message disclosure” box was pre-checked, meaning she took no affirmative steps to assent to receive any messages.

The court rejected these arguments, concluding that the disclosure language did not need to include magic words, such as “advertisement” or “telemarketing,” to properly notify her that she would receive marketing messages. What mattered were the circumstances surrounding the disclosure and the perspective a “reasonable consumer” would have in reading the disclosure. Here, the court concluded a reasonable consumer would have understood the disclosure was notifying consumers about marketing messages because the defendant was a meal delivery service provider whose primary (and possibly only) goal was to market and sell those meals. As the court explained:

Plaintiff registered with Schwan’s to initiate an account with a frozen food delivery service. When viewed in context, this Court finds that a reasonable consumer would understand that “important updates” and “program news” from a frozen delivery company, whose sole purpose is to sell food products, is likely to include promotional or advertising content related to those services.

The court then concluded the pre-checked nature of the disclosure box did not create any fact-based issue as to whether the plaintiff had assented to receive marketing messages. While pre-checked disclosure boxes did not provide the clearest manifestation of a consumer’s assent, the fact that it was located directly next to the disclosure and that the plaintiff needed to scroll past it to complete her registration was sufficient to establish plaintiff’s authorization.

The court also found that within the defendant’s mobile messaging terms and conditions, which were hyperlinked in the disclosure, there was clear and conspicuous language disclosing that consumers would receive text messages regarding the defendant’s “promotions” and its “products and services.” Because the plaintiff had assented to the disclosure and thereby the hyperlinked terms, she received explicit notice that she would receive marketing messages. The plaintiff’s failure to carefully read the terms in the hyperlinked webpage did not create any issue precluding dismissal.

Best Practices for Properly Obtaining Prior Express Consent

Although the defendant prevailed, good practice should include explicit reference to marketing messages in the text message disclosures without pre-checked disclosure boxes. Following these points, here are some TCPA risk mitigation best practices that can be taken from this decision:

• Display telemarketing disclosures in a clear, legible format: Make sure that notice of your telemarketing program is printed in a single paragraph and in a conspicuous manner such that it can be easily read by the average consumer.
• Explicitly reference the telemarketing campaign’s intended purpose: Instead of using vague words to describe the types of messages you will send, explicitly state that the messages will be for advertising and marketing purposes to remove any ambiguity.
• Require affirmative action to express assent: Instead of presenting the consumer with a pre-checked or automated opt-in into your telemarketing campaign, require the consumer to affirmatively opt-in by clicking or checking a box and explain the consequences of the consumer’s acceptance. Again, your wording should be intentionally unambiguous (i.e., “I agree” or “I accept”) and should acknowledge that the consumer is accepting the receipt of marketing messages.
• Maintain records of the consumer’s consent: Finally, make sure you have in place a consistent method of preserving records of consent and the versions of the disclosure assented to. Make sure these records are retained throughout the period during which the telemarketing campaign remains live, plus an additional four years (which is the TCPA’s statute of limitations).

It is imperative that marketers ensure they are properly obtaining a consumer’s prior express consent to receive marketing calls or messages to ensure they are in the best position possible if they ever face a TCPA lawsuit. Of course, the specific views on the format of consent may vary from court to court, but the discussion above highlights some key principles that brands should consider as they establish and/or evaluate their telemarketing opt-in campaigns.