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TCPA SMS Marketing Lawsuit – Viggiano v. Kohl’s


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Companies encourage consumers to opt in to text message marketing campaigns because they’re an easy and accessible way to keep consumers engaged and informed. Unfortunately, Telephone Consumer Protection Act (TCPA) cases have become the second most common type of civil litigation in federal courts. The TCPA requires that companies prove they offer consumers reasonable methods to opt out of communication AND that companies obtain written consent when consumers opt in. In this blog post, we review details of Viggiano v. Kohl’s Department Stores and provide strategies that can help text message marketers avoid litigation.


About Viggiano v. Kohl’s Department Stores

Kohl’s Department Stores is a national brand known for its shopping experience and the savings campaigns it offers consumers in stores, online, and through its mobile app. Plaintiff Amy Viggiano opted in to Kohl’s text message marketing campaign, and after some time, decided she no longer wanted to receive text messages from the company. Viaggiano tried to opt out with the following text messages:

“I’ve changed my mind and don’t want to receive these anymore.”

“Please don’t send any further messages.”

“I don’t want these messages anymore. This is your last warning!”

Khol’s SMS platform replied, “Sorry, we don’t understand. Reply, ‘HELP’ for help or, ‘STOP’ to cancel.”

Viggiano filed a class-action lawsuit against Kohl’s due to alleged TCPA violations regarding the continued unwanted communication. Kohl’s filed a motion to dismiss the case based upon providing reasonable means for Viggiano to opt out. The case was dismissed within a few months.


Strategies to Help SMS Marketers Avoid Litigation

One of the most important things text message marketers can do to reduce their risk of litigation with disgruntled consumers is to make sure they’ve provided reasonable means for consumers to opt out. 

1. Communicate clearly in automated responses.

Most SMS platforms provide companies with 160 characters in automated responses to respond to consumers. Don’t let those characters go to waste. Check out our detailed guide outlining what’s required in an SMS opt-in confirmation message. Let consumers know that a software program is texting them. Use words such as HELP and STOP to ensure automatic responses are easy to understand. Be sure your message states that it’s an automated response (similar to no-reply emails). Use straightforward language with consumers in messages delivered by automated systems. Clear communication is key to avoid litigation.

2. Keep thorough, pristine records.

The TCPA places the burden of proof on the defendant—that’s you! Keep a visual library of the consumer’s experience from beginning to end. Take photos of the opt-in process, including the call-to-action methods placed in stores, emails, and flyers, as well as all messages sent to the consumer during the campaign and the opt-out stage. The statute of limitations is up to four years, but it’s a best practice to keep all records, even records of discontinued campaigns. 

3. Work with in-house counsel.

Finally, if your company is threatened with litigation, involve in-house counsel as soon as possible. In-house counsel can grasp the details of claims against your company and help you make the best decisions to protect your business. 


Tatango Can Help With TCPA Requirements

Tatango has been an industry leader for more than 13 years. Our text message marketing platform includes features designed to help you meet TCPA consent requirements to reduce your risk of litigation. Stay informed of TCPA regulations with our TCPA Survival Guide to ensure all of your SMS campaigns are protected.

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