Evan Schuman's StorefrontBacktalk

Oh, that wacky federal court system. Within days of a U.S. federal judge ordering that retail pizza chain Papa Johns must stand trial in a class-action case alleging misuse of a customer texting program, a different federal judge dismissed an almost identical accusation against Walmart.

The cases both deal with the issue of consent. Specifically, if a shopper gives a chain a mobile phone number for any purpose, is that consent for the chain to use that number for an unlimited number of other purposes? In the Walmart case, a customer left a prescription with a Walmart pharmacy to be filled and then picked up later. The pharmacy associate asked for a mobile number “in case they needed to contact her,” presumably to discuss or ask about the prescription.

U.S. District Court Judge C. Lynwood Smith, Jr., said that Walmart associates said that the “telephone number was needed ‘in case there were any questions that came up.’ None of the defendant’s employees explicitly sought permission to send plaintiff text messages. Nevertheless, plaintiff received an undisclosed number of text messages on her cellular telephone from defendant within hours of leaving her prescription at defendant’s pharmacy.”

The customer’s lawyers argued that Walmart didn’t have the right to send the texts. “Walmart attempts to shift the burden of proof regarding express consent to plaintiff by insinuating that it is plaintiff’s fault she received text messages because she failed to instruct Walmart not to send her text messages. Defendant’s position is laughable. The sole reason the Telephone Consumer Protection Act (TCPA) was enacted was to protect consumers from receiving unsolicited calls.”

Walmart’s filing took a very different position: The customer “does not say how many text messages she received, what they said, that they caused her any harm or damage, or even that she didn’t want to receive them. Still, she seeks to represent everyone in Alabama who has received a text message from Walmart in the last six years and claims statutory damages under the TCPA of $1,500 per text message. Plaintiff’s claim, however, is barred by the simple fact, admitted in the complaint, that when asked for her cell phone number, she voluntarily provided it to Walmart and expressly for the purpose of Walmart’s contacting her on that phone.”

The judge agreed with Walmart and ruled that there exists no legal distinction between a voice call and a text message. The shopper argued, the judge wrote, that “‘text messages and voice phone calls have always been treated differently under the TCPA and FCC rules. The right to call does not give you the right to send text messages to the other.’ Plaintiff’s distinction does not comport with common sense and everyday experience. More importantly, the FCC and the courts have rejected the argument that the TCPA treats traditional voice telephone calls differently from text messages. Plaintiff inverts the burden of proof on the issue. Once she voluntarily provided defendant with her telephone number (i.e., generally consented), it was her responsibility to explicitly state the limited scope of her consent.”

The fact that the two federal judges came to such diametrically opposed decisions involving two major national retail chains and text campaigns that began with mobile phone numbers provided for an entirely different purpose makes it hard to take too many legal cues. (For that, StorefrontBacktalk Legal Columnist—and former federal prosecutor—Mark Rasch steps in.)

Regardless of how the courts ultimately rule, if your shoppers are infuriated by the texts—with such fury fueled by some of them being charged extra for your texts—the plan needs to be rethought.