Opting OutWe blogged in February about Epps v. Earth Fare, in which the Central District Court of California dismissed a lawsuit under the Telephone Consumer Protection Act (TCPA) because the plaintiff revoked her consent to receive text messages in an unreasonable manner. In that case, the plaintiff attempted to unsubscribe from further messages—in which case additional calls or texts would implicate the TCPA—but she did so with a verbose text message instead of simply replying “STOP,” as each of the defendant’s texts clearly instructed. The court found these allegations failed to state a claim under the TCPA because of the unreasonable nature of the plaintiff’s opt-out.

As further discussed in our February blog, the TCPA is a popular tool of serial plaintiffs, who have both a private right of action under the TCPA and the ability to bring about the alleged harm with relatively little effort by soliciting unconsented-to calls or texts. However, the District of New Jersey recently dismissed a case that was very similar, factually, to Earth Fare, adding to a growing body of decisions that disfavors plaintiffs who intentionally avoid the familiar supplied text message opt-out mechanism—i.e., replying “STOP.” In Rando v. Edible Arrangements International, LLC, No. 1:17-cv-00701 (D.N.J. Mar. 28, 2018), the plaintiff allegedly “withdrew consent” through wordy text messages instead of replying “STOP” as instructed. Here, the court determined that those actions, under the totality of the circumstances, were not a “reasonable means” of revoking consent. As a result, the plaintiff had no claim under the TCPA.

In Edible Arrangements the court did not totally close the door on these suits. However, because it found the plaintiff suffered a harm sufficient for standing—despite labeling her actions as unreasonable—the complaint was dismissed without prejudice, meaning that the plaintiff could file an amended complaint. To succeed where this suit failed, that complaint would need to allege that she withdrew consent through reasonable means. Notably absent from the opinion was any reference to the D.C. Circuit’s recent decision in ACA International v. FCC. In that case, the D.C. Circuit found that a caller cannot mandate consent revocation procedures, but also held that the 2015 Omnibus TCPA Order does not limit parties from agreeing on revocation methods. It’s somewhat surprising the District of New Jersey does not reference ACA International, considering that its opinion spoke directly to the validity of opt-out mechanisms; however, it also might simply be a result of dismissal briefing having wrapped up before the decision in ACA International was issued. As a result, it remains to be seen what effect, if any, the D.C. Circuit’s ruling will have on cases like Edible Arrangements. But for better or for worse, we’ll likely have some clarity before too long considering the persistent nature of TCPA litigation.

We continue to monitor developments in TCPA litigation and a list of recent TCPA actions can be found here.