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Thomas v. Abercrombie and Fitch, Inc.

United States District Court, E.D. Michigan, Southern Division

November 13, 2017

Melissa N. Thomas, Plaintiff,
v.
Abercrombie & Fitch Stores, Inc., et al., Defendants.

          Mona K. Majzoub Mag. Judge

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [37]

          JUDITH E. LEVY United States District Judge

         This is a Telephone Consumer Protection Act (“TCPA”) case.Plaintiff Melissa N. Thomas alleges that in April 2016, she received four unsolicited text messages from defendants Abercrombie & Fitch Co. and Abercrombie & Fitch Stores, Inc. (collectively, “A&F”). (Dkt. 5 at 9-10.) Pending is defendants' motion for summary judgment. (Dkt. 37.) Because there is no genuine issue of material fact that plaintiff consented to receive these messages, the motion is granted.

         I. Background

         On April 24, 2016, plaintiff filed a putative class action alleging that A&F, along with up to twelve John Doe defendants, violated the TCPA by sending her and other customers four unsolicited text messages between April 14 and April 22, 2016. (Dkt. 5.) On April 14, 2016, she received this text message on her cellular phone:

a&fkids: Reply confirms u agree to 15 markting msgs/mnth via automatd system & Terms: http://bit.ly/kidsTs Consent not required 4 purchase. Msg&DataRatesMayAply

(Id. at 9.)

         On April 15, 2016, she received this message on her cellular phone:

a&f kids: We have a new program! Text JOIN to 23543 to get an awesome surprise offer & to receive kids texts! See new Terms: http://bit.ly/kidsTs STOP to cancel

(Id.)

         On April 22, 2016, she received these two messages on her cellular phone:

a&f kids: Text JOIN to 23543 to get an awesome surprise offer & to receive kids texts from our new program! See new Terms: http://bit.ly/kidsTs STOP to cancel a&f kids: Reply confirms u agree to 15 markting msgs/mnth via automatd system & Terms: http://bit.ly/kidsTs Consent not required 4 purchase. Msg&DataRatesMayAply

(Id.)

         The messages each came from a short-code telephone number, 348-24, controlled by A&F. Plaintiff contends that she did not consent to receive those text messages, and that their transmission violated the TCPA.

         On July 15, 2016, defendants filed a motion to dismiss this case on the grounds that plaintiff consented to receive the text messages set forth above. (Dkt. 17.) Following oral argument on December 13, 2016, the Court converted the motion into one for summary judgment and granted plaintiff's motion for leave to take discovery regarding her purported consent to receive the text messages. On April 17, 2017, defendants filed a renewed motion for summary judgment. (Dkt. 37.)

         Following discovery, the parties agree that on December 4, 2015, at 1:34 P.M., plaintiff texted the keyword “Style” to 348-24. (Dkt. 37 at 21, Dkt. 42 at 5-6.) Plaintiff had shopped at various A&F brands and used discounts from those stores before. (Dkt. 37-2 at 7-8.) Her text was in response to a promotion on the Abercrombie Kids website.[1] The promotional webpage read:

we've got something for you
text style

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