Opting OutWe all have received an errant text message on our phone or a marketing message intended for someone else. This is surely annoying but most of us will either ignore the message, send a reply message opting out, or, as an extreme measure, leave a scathing review online, complete with ALL CAPS. What some individuals do, however, is intentionally solicit additional texts by replying or following through on some of the action requested. By using multiple phones and spending all day subscribing to services, these individuals inevitably receive a lot of calls and texts with offers. Some of those messages might even be from sellers that the individual didn’t actually contact because the consumer’s information has become so widely disseminated, which is exactly what certain serial litigants seek to achieve.

The incentive to become a serial litigant is clear when you consider that for each message received without consent, an individual can claim statutory damages under the Telephone Consumer Protection Act (“TCPA”). Those damages could be $3,000 per text and/or call if the message is automated and sent to an individual on the National Do Not Call Registry. Yes, you read it correctly, it may be up to $3,000 per violating text. One such serial litigant has brought suit for alleged TCPA violations over one hundred times since 2014. He often files complaints pro se and will continue litigation until companies decide it’s cheaper to settle rather than pay additional legal fees. He has openly bragged about these methods, writing blog posts entitled “TCPA enforcement for fun and profit up to 3k per call” and aspiring to author a book entitled Tales of a Debt Collection Terrorist: How I Beat the Credit Industry at Its Own Game.

Some relief may be on the horizon for companies afflicted by these types of professional plaintiffs. In Epps v. Earth Fare, No. 2:16-cv-08221, 2017 WL 1424637 (C.D. Cal. Feb. 27, 2017), the plaintiff opted into receiving text messages from the defendant, but sued under the TCPA based on additional messages she received after ostensibly revoking consent. The texts at issue instructed the recipient to reply “STOP” if she wished to unsubscribe from further messages, to which the plaintiff replied, “I would appreciate it if we discontinue any further texts.” The district court found that the plaintiff failed to state a claim under the TCPA because her method of revoking the texts was unreasonable and ineffective. The court also took judicial notice of the fact that the plaintiff filed four other TCPA cases in a month’s span after filing this one.

Epps appealed the district court’s ruling to the Ninth Circuit; the appeal is pending. Companies operating in this area will hope that the appellate court not only upholds the decision but goes further and finds that the plaintiff lacks standing. In late December 2017, ACA International filed an amicus brief arguing that there is no injury in fact to support federal court standing where a TCPA plaintiff “has procured the alleged violation of which she is complaining.” Essentially, if your actions demonstrate that you want to receive these messages, as in the case of a serial litigant, then you cannot claim to be injured by them. As a result, if a serial litigant cannot show an injury, then he or she has no standing to bring suit. Stay tuned (but don’t wait for our text messages) for updates on this case and others involving the issue of revocation methods. We continue to monitor developments in TCPA litigation and a list of recent TCPA actions can be found here.