In Franklin v. DePaul University, No. 16 C 8612, 2017 WL 3219253 (N.D. Ill. July 28, 2017), Judge Lee allowed a TCPA text message claim to proceed past the pleading stage.
DePaul nevertheless asks the Court to ignore Franklin’s allegation that he never gave prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a motion to dismiss.” Def.’s Mem. Supp. at 8.3 As noted above, however, prior express consent is an affirmative defense, and Franklin need not anticipate or attempt to plead around affirmative defenses. Levin, 763 F.3d at 671. Moreover, this assertion is not, in fact, merely a legal conclusion, because Franklin supports it with additional factual allegations, stating that he “has never provided his cellular phone number to the Defendant.” Compl. ¶ 25. Construing the complaint liberally and drawing inferences in Franklin’s favor, the Court must credit Franklin’s claim that he did not consent to receiving DePaul’s texts at this preliminary stage.  Undeterred, DePaul seeks to bolster its argument by including an exhibit of an online form from its website, as well as an exhibit of what seems to be a series of back-end system screenshots, neither of which is attached to Franklin’s complaint. Def.’s Mem. Supp., Exs. A–B. But these exhibits are not central to Franklin’s claim, and the Court declines to consider them in ruling on this motion. Franklin is correct in his brief, stating that he has “not referred to Exhibit A or B” and has “never seen these forms [and does] not know where they come from.” Pl.’s Mem. Opp. 6 n.1, ECF No. 20. Nor will the Court take judicial notice of these exhibits. Courts in this district have rejected invitations to take judicial notice of exhibits such as website printouts, except where the party offering the materials shows that they are “matters of public record” or “come from sources whose accuracy cannot reasonably be questioned.” Hill v. Capital One Bank (USA), N.A., No. 14-CV-6236, 2015 WL 468878, at *5 (N.D. Ill. 2015) (internal quotation marks omitted) (collecting cases). By contrast, DePaul’s exhibits appear to consist of screenshots of some unspecified computer program or Internet site whose accuracy has not been verified, and it is difficult to even determine the source of Exhibit B. Because the exhibits are not sources whose accuracy “cannot be reasonably questioned,” the Court will not take judicial notice of their content. Cf. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 648 (7th Cir. 2011).4  Last, DePaul argues that Franklin’s failure to opt out of subsequent text messages after receiving the first message shows continual express consent to receive the subsequent messages.5Specifically, DePaul claims that Franklin failed to use a reasonable means available to opt out by replying with the word “Out” instead of with the keyword “OUTDP” as instructed. Def.’s Mem. Supp. at 7. Again, this is an issue of fact that the Court cannot consider at this stage of the litigation. Drawing reasonable inferences in Franklin’s favor, it is hardly clear from the face of the complaint that he intended to give his express consent to receive further text messages by texting “Out,” instead of “OUTDP.” In fact, texting “Out” may just as well support Franklin’s opposing assertion that he intended to opt out of DePaul’s text messages. More importantly, even assuming arguendo that Franklin consented to receive these subsequent text messages, he is entitled to proceed with his TCPA claim because he alleges that he never expressly consented to the initial text message. In other words, even if Franklin could be found to have consented to the subsequent messages by failing to text the precise keyword “OUTDP,” he would still be entitled to proceed with his TCPA claim based on his receipt of the initial text.