TCPA Doesn’t Allow Plaintiff to Revoke Consent After the Fact, Says Kohl’s

Kohl’s denies that it violated the Telephone Consumer Protection Act, the Rosenthal Fair Debt Collection Practices Act (RFDCPA) “or any other statute or law alleged” in plaintiff Matilde Cowen’s Feb. 3 complaint (see 2302030043), said the defendant’s answer Wednesday (docket 3:23-cv-00199) in U.S. District Court for Southern California in San Diego.

Cowen alleges Kohl’s debt collection agents called her more than 150 times about her delinquent credit card account, even after receiving written notice from her lawyers revoking any prior consent to call. But Cowen’s claims against Kohl’s are barred because the TCPA doesn’t permit her to revoke consent after, “as part of a bargained-for-exchange,” she agreed to be contacted under the terms of the Kohl’s card member agreement when she applied for a Kohl’s charge card in April 2018, said the Kohl’s answer.

Kohl’s acted in good faith “with respect to any calls it made” to Cowen in connection with her Kohl’s charge card, said the answer. Kohl’s also denies any TCPA wrongdoing because it doesn’t use an automated telephone dialing system as defined under the statute, it said.

The defendant alleges that the damages Cowen seeks violate the Constitution's due process clause and constitute “excessive fines” in violation of the Eighth Amendment, said the Kohl’s answer. Granting her demand for monetary remedies, including treble damages and punitive damages, “would result in unjust enrichment,” it said.

Cowen hasn’t alleged “she suffered any particularized and concrete injury, whether tangible or intangible,” as a result of any contact Kohl’s made in connection with her charge account, said the answer. Granting her demand for damages would result in her receiving more money than she’s entitled to receive, because none of the calls Kohl’s made violated the TCPA, the RFDCPA “or any other law or theory of legal recovery,” it said.