TCPA Lawsuit Being Challenged by Kohl’s

A TCPA lawsuit is being challenged by  Kohl’s Corp., which has asked a federal judge to throw out the lawsuit or compel arbitration.

Lead plaintiff Brittany Ineman has accused Kohl’s of repeatedly harassing her with robocalls in an effort to collect on a debt allegedly in violation of the Telephone Consumer Protection Act (TCPA).

Kohl’s argued that Ineman is attempting to dodge her obligation to arbitrate her TCPA claim. The retailer asserts that since Ineman used her store-issued credit card to purchase items from Kohl’s, it amounts to a de facto obligation on her part to abide by the arbitration agreement.

Under the TCPA, enacted in 1991, businesses are not allowed to solicit consumers by calling residences before 8 a.m. or after 9 p.m. and must also provide the name and company they are calling on behalf of in addition to a telephone number or address where the company can be contacted. Solicitors must also maintain a company-specific do-not-call list which is to be honored for five years.

Using autodialing equipment – known as robocalling – to send calls to wireless phones without the prior consent of the cell phone user is prohibited under the TCPA. Text messages are considered the equivalent of telephone calls.

Banks, restaurants and debt collection agencies are notorious for committing TCPA violations for which the courts have awarded consumers millions of dollars stemming from class action lawsuits.

Each violation of the TCPA can carry up to a $1,500 penalty.

In Ineman’s case, she and the others in the Class accuse Kohl’s of implementing “skip-tracing techniques” to obtain the cell phone numbers of customers who owed money on store credit cards. The company then allegedly harassed the customers with repeated collection calls.

Ineman argues that for years Kohl’s harassed her with pre-recorded robocalls that she never provided consent for. The Federal Communications Commission requires the consumer to provide their cell phone number as part of that consent. Ineman claims she never listed her cell phone number when applying for a Kohl’s card in 2008, but nonetheless received harassing robocalls from Kohl’s and other companies acting on its behalf beginning that year and lasting until 2013.

The calls continued even after Ineman changed both her wireless carrier and her cell phone number, according to the lawsuit. Kohl’s allegedly found her new contact information by skip-tracing.

“Plaintiff’s experience is typical of that of other Kohl’s customers,” the robocall lawsuit says. “Kohl’s maintains a coordinated program of calling customers using an ‘automatic telephone dialing system’ and/or ‘an artificial or prerecorded voice,’ as well as using ‘skip-tracing’ techniques to identify a customer’s current cellphone number.”

Kohl’s did not directly address Ineman’s accusations of TCPA violations but instead argued that by using her credit card, she’s legally bound to arbitrate the claim.

“The law is clear, however, that use of a credit card, by itself, demonstrates consent to be bound to the applicable cardholder agreement. There is no dispute here that plaintiff used her Kohl’s credit card to make purchases. On this basis alone, this court can and should find that plaintiff is bound to the 2009 cardholder agreement and should grant Kohl’s motion,” the company said in its reply brief.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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