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Zeidel v. YM LLC USA

United States District Court, N.D. Illinois, Eastern Division

April 27, 2015

FRIEDA ZEIDEL, Plaintiff,
v.
YM LLC USA, Defendant.

MEMORANDUM OPINION AND ORDER

ROBERT M. DOW, Jr., District Judge.

Plaintiff Frieda Zeidel alleges that Defendant YM LLC violated the Telephone Consumer Protection Act by sending her an advertisement via text message without her prior express consent. Before the Court is Defendant's motion for summary judgment [31]. For the reasons set forth herein, Defendant's motion is denied.

I. Background

The Court takes the relevant facts from the parties' Local Rule 56.1 statements, construing the facts in the light most favorable to the nonmoving party (here, Plaintiff).[1]

A. Undisputed Facts

Defendant YM LLC USA owns and operates several retail clothing stores in the United States, including the MANDEE brand clothing store. There is only one MANDEE store in Illinois, located in the Norridge Commons Shopping Center in the Village of Norridge (just a few miles northwest of Chicago). Plaintiff lives in Norridge, about a mile-and-a-half away from the MANDEE store. In May of 2013, while shopping at the MANDEE store, Plaintiff provided a sales associate with her cell phone number. On June 5, 2013, Plaintiff received the following text message on her cell phone:

Welcome to VIP status! Your gift: 20% OFF ur purch. Exclusive offers 2 come. Cannot combine RC 427 Expires in 30 days. www.Mandee.com Rply STOP to stop.

The text message came from Defendant, via a texting service called Mozeo LLC. Plaintiff replied "STOP" to the message, and Defendant stopped texting Plaintiff.

Defendant sent this text message to certain customers listed in its Customer Maintenance database. Defendant's Customer Maintenance database consists of information voluntarily provided to Defendant by MANDEE customers, either through its website or-as was the case with Plaintiff-in person at one of its retail stores.

B. Prior Express Consent

The main factual dispute here pertains to the interaction between Plaintiff and the MANDEE sales associate on the day that Plaintiff provided her cell phone number. There is no recording of that conversation, and each party has its own story as to what was said. Defendant alleges that its sales associates are trained to ask customers if they want to receive text messages before asking for a customer's phone number, such that it would be impossible for MANDEE to have Plaintiff's phone number without Plaintiff consenting to receive text messages. In support of this argument, MANDEE's Director of Marketing, Jan Harvey, provided a declaration claiming that "the only way Plaintiff Zeidel's cell phone number would end up in the Customer Maintenance database record * * * would be if she voluntarily provided it to a sales associate at a MANDEE store * * * in response to a specific query as to whether she wanted to receive texts from MANDEE." [Harvey Decl., 32-1, ¶ 10.] Similarly, Jessica Ramos, who has managed the MANDEE store in question for the past eight years, provided a declaration stating that sales associates in her store "are trained to ask customers whether they would like to receive text messages which would provide the customers with discount offers and notice of new merchandise arrivals, " and that "[i]f the customer answers yes, ' the sales associates are further trained to solicit from the customer at least their cell phone number." [Ramos Decl., 32-3, ¶ 4.] In her deposition, Ms. Ramos testified that she trains everyone in the store personally, and that in her eight years as manager she is not aware of any instances where an employee took a customer's phone number without first asking the customer if they wanted to receive coupons or marketing messages. [Ramos Dep., 52-1, at 5.] Accordingly, Ms. Ramos concluded that "the only way Plaintiff Zeidel's cellphone number would end up in the Customer Maintenance database record * * * would be if she voluntarily provided it to a sales associate * * * in response to a specific query as to whether she would like to receive texts from MANDEE." [Ramos Decl., ¶ 5.]

Not surprisingly, Plaintiff disagrees with this characterization. Plaintiff's primary argument is that Ms. Ramos (the store manager) testified that there is no script that prompts the sales associates on what to ask the customers while requesting personal information (such as cell phone numbers), and that it is possible that a sales associate could ask a customer for his or her phone number without first gaining the customer's acknowledgment that in doing so the customer is authorizing MANDEE to send the customer text messages. [Ramos Dep., 50-1, at 10-13.] In her own deposition, Plaintiff admits that she provided her cell phone number to the sales associate, but claims that she did so only "[b]ecause they asked for it, " and that she is "not really sure" why they asked for her number, "[b]ut if anybody had told [her] that it was for a text, then [she] wouldn't have given [her] cell phone [number] out." [Zeidel Dep., 52-3, at 8.]

II. Legal Standard

Summary judgment is proper where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Sallenger v. City of Springfield, Ill., 630 F.3d 499, 503 (7th Cir. 2010) (citing Fed.R.Civ.P. 56(c)(2) and noting that summary judgment should be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law"). In determining whether summary judgment is appropriate, the court should construe all facts and reasonable inferences in the light most favorable to the non-moving party. See Carter v. City of Milwaukee, 743 F.3d 540, 543 (7th Cir. 2014). Rule 56(a) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against any party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on ...


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