The United States District Court for the Northern District of Illinois denied Ralph Lauren’s motion to dismiss in favor of a recipient of text messages in Hudson v. Ralph Lauren Corp. et al. Ralph Lauren now must defend the class action suit over excessive text messages.

Plaintiff Patrick Hudson alleged Ralph Lauren violated the Telephone Consumer Protection Act by sending him 188 text messages via autodialer without his consent. Ralph Lauren filed a motion to dismiss, claiming that Hudson had “pleaded himself out of court” by pleading that he consented to the messages. His amended complaint alleged that Hudson pressed “Y” to consent to “automated offers & ads” and that these messages would be “up to 6 msgs/mo.”

The Court rejected Ralph Lauren’s consent argument, citing that Hudson only consented to six messages per month and that Ralph Lauren sent messages beyond Hudson’s consent. “Because Hudson’s first amended complaint does not preclude a finding that he did not consent to all the messages Defendants sent, the Court cannot dismiss Hudson’s TCPA claim on the basis of prior express consent at this stage.”

However, the Court did grant dismissal of one of Hudson’s claims. He alleged that the messages also violated the TCPA because they did not include “opt-out instructions in each text message.” In its motion to dismiss, Ralph Lauren argued that these opt-out requirements only apply to artificial or prerecorded voice messages, such that no basis exists to find a TCPA violation for the failure to include opt-out instructions in a text message. The Court agreed and ruled that “because the plain language of [this portion of the TCPA] encompasses only voice telephone messages and Hudson identifies no other basis for imposing an opt-out requirement with respect to every text message Defendants sent Hudson, he cannot pursue a claim … .”

In light of this order, it appears that Ralph Lauren must face the customer suit over the excessive text messages. This matter demonstrates to retailers that they do not need to add opt-out language in their text messages to comply with the TCPA. Troutman Sanders will monitor this litigation going forward.