In today’s blog post, we update you on the significant legal decision in Epps. v. Earth Fare, Inc., an important victory for marketers in a recent series of cases filed in the Central District of California federal courts declaring contrived revocation of consent claims in alleged violation of the Telephone Consumer Protection Act of 1991 (TCPA). Waterfall provided subject matter expertise to Earth Fare’s SMS provider, SUMOTEXT Corp., (“SUMOTEXT”), helping defend this action which has a significant impact on other marketers facing similar TCPA claims.
In Epps, the plaintiff, a Los Angeles, CA resident, sued Earth Fare, Inc., a North Carolina-based organic grocer, alleging that while she initially consented to receive promotional text messages from Earth Fare—despite the fact that Earth Fare does not sell products or services online and has no store within 2,000 miles of Los Angeles— she subsequently tried to revoke her consent several times and continued to receive text messages from Earth Fare in alleged violation of the TCPA.
Granting the Defendant’s motion to dismiss the complaint (without leave to amend) for failure to state a TCPA claim, the Court found the plaintiff failed to allege a TCPA claim for two pressing reasons: (1) failure to plausibly allege that her revocation of consent was effective; and (2) failure to plausibly alleged use of an automated telephone dialing system (ATDS).
Regarding effective revocation of consent, the Court found that the plaintiff’s behavior sealed her own fate. When the plaintiff affirmatively consented to join Earth Fare’s text messaging program, Earth Fare provided an opt-in confirmation message disclosing, among other required items, instructions on how a consumer may use the so-called ‘Stop Command’ to opt-out of Earth Fare’s text message program (“Text STOP to end”). Earth Fare consistently identified this opt-out mechanism to the consumer to unsubscribe from receiving text messages (on 39 separate occasions), even while the plaintiff sent “verbose” text message responses that purposely ignored the use of the Stop Command (e.g., “I would appreciate if we discontinue any further texts”).
The Court first found that the Federal Communications Commission (FCC) regulations implementing the TCPA require that marketers provide an automated, direct opt-out mechanism (such as a Stop Command) to allow consumers to revoke their consent and that the Court must look at the “totality of the facts and circumstances” to determine if a consumer “had a reasonable expectation that he or she could effectively communicate his or her request for revocation…” Based on the facts alleged, even when viewed in the plaintiff’s favor, the Court found that the plaintiff could not plausibly claim that Earth Fare created any burden on her ability to revoke consent by continually reminding her to use the Stop Command. The Court noted, “in fact, heeding Defendant’s opt-out instruction would not have plausibly been more burdensome on Plaintiff than sending verbose requests to terminate the messages.”
As for whether the plaintiff proper pled use of an ATDS, the Court found that California courts previously established that text messages sent in response to a “voluntary release of a user’s phone number” do not support a plausible inference that an ATDS was used. Hence, the plaintiff failed to claim use of an ATDS by simply alleging in a conclusory manner that Earth Fare sent her text messages using ATDS “as defined by 47 U.S.C. § 227(a)(1).” Citing Weisberg v. Stripe, Inc. and Duguid v. Facebook, Inc., the Court found that the plaintiff’s “voluntary opt-in to the text messages is inconsistent with her allegation that an ATDS was used.”
Moreover, the Court found dismissal without any leave to amend was warranted in this case because no amendment could “cure the primary deficiency: Plaintiff’s revocation method was not reasonable, as indicated by the text message log, to which Plaintiff raised no evidentiary objection.”
This is a significant legal victory for marketers who face similar “opportunistic” consumers that seek to game marketer’s valid opt-out mechanisms in their text messaging programs in order to file TCPA actions.
The Court cited In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd 7961, 7996 ¶ 64 (July 10, 2015), and In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 1830, 1837 ¶18.
No. CV 16-00584 JST, 2016 WL 3971296 (N.D. Cal. July 25, 2016).
No. CV 15-00985 JST, 2016 WL 1169365 (N.D. Cal. March 24, 2016).
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