Ninth Circuit Drops the Hammer on Opt Out Evader in TCPA Case; Agrees One-Word Opt-Out is Reasonable Revocation Procedure

On Friday, October 26, the Ninth Circuit made it clear that it will not tolerate Opt-Out Evaders in its Circuit.

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Opt-out evaders are unpleasant residents of TCPAland that set up “test” cases by, inter alia, sending everything but “stop” to a texter in a bid to continue to receive more texts. They then sue the texter under the TCPA claiming that their privacy rights were invaded by the subsequent texts. Its pretty gross, but also pretty common. One such effort (scam?) was shut down in a recent case involving Edible Arrangements.

The most famous opt-out evader case to date, however, was Epps where–at the district court level–the court held that the Plaintiff knew full well that the caller had a reasonable revocation paradigm (just text “stop”) and the Plaintiff had knowingly chose not to use it. Hence the evader’s revocation effort was “unreasonable.”

At the time the district court decision in Epps was handed down that was big news. ACA Int’l had not yet been decided so the notion that a caller could dictate the terms of revocation–even something as basic as requiring a “stop” response–was pretty cutting edge, if not somewhat taboo.

The case was appealed to the Ninth Circuit and today the same circuit that brought us Marks a few short weeks ago, affirmed the district court’s dismissal.

In Epps v. Earth Fare, No. CV 16-08221 SJO (SSx), 2017 U.S. Dist. LEXIS 63439 (C.D. Cal. Feb. 27, 2017), the Plaintiff allegedly sought to stop text messages from Defendant. But when present with the instruction “Text STOP to end,” Plaintiff purposefully sent plain language texts such as “I would appreciate [it] if we discontinue any further texts” and “Thank you but I would like the text messages to stop can we make that happen.” The lower court found that Plaintiff did not reasonably revoke given the totality of circumstances and therefore granted Defendant’s Motion to Dismiss.

Plaintiff appealed. The Ninth Circuit, unsurprisingly given all of the recent developments in the area of revocation, agreed with the lower court finding that:

The district court properly dismissed Epps’ complaint after assessing the totality of the facts and circumstances surrounding Epps’ communications with Earth Fare, including the messages detailed in the parties’ text message log. . . In light of these facts and circumstances, including (1) the availability of a one-word opt-out procedure; (2) Epps’ unexplained failure to use the one-word opt-out; and (3) Earth Fare’s notice to Epps that it did not understand her non-standard messages, we agree with the district court that Epps failed plausibly to allege that she reasonably revoked her consent.

The Ninth Circuit’s message is unmistakable: Opt Out Evaders, You’re Not Welcome Here.

A little good news for TCPAland!

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