On November 8, 2018, Plaintiff John Geraci (“Geraci”) commenced a Telephone Consumer Protection Act (“TCPA”) lawsuit in the United States District Court of New Jersey. The named defendant in the TCPA litigation is Red Robin International (“Red Robin”), which operates the chain of Red Robin Gourmet Burgers and Brews casual dining restaurants.

The Geraci lawsuit is based on alleged violations of the TCPA and seeks class action certification. The TCPA prohibits the placing of any telephone call or the sending of any text message, using an automatic telephone dialing system, to any telephone number assigned to a cellular telephone service, without obtaining the receiving party’s prior express written consent. 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA does not address a consumer’s right to revoke previously provided consent. Nevertheless, courts and the Federal Communications Commission have uniformly interpreted TCPA regulations to permit such revocation.

Why did Red Robin Seek to Change Venue after being Sued?

Geraci contends that he received several text messages from Red Robin in May, 2018 concerning Red Robin Royalty Program promotions, and that he replied “Stop,” which opt-out requests were immediately acknowledged by Red Robin. Nonetheless, Geraci alleges, the Red Robin text messages kept coming. As a result, Geraci commenced TCPA litigation, seeking monetary recovery for text messages sent to him and the putative class after they opted out, during the period of November, 2014 to November, 2018.

On February 15, 2019, Red Robin sought to change the venue of the TCPA litigation from the District Court of New Jersey to the District Court of Colorado. Red Robin contends that Geraci enrolled in the Red Robin Royalty Program, and explicitly agreed to the program’s Terms and Conditions, which included a dispute resolution provision providing for litigation in courts located in the State of Colorado. Geraci opposed the change in venue, contending that Red Robin failed to prove that he enrolled in the Royalty Program, and that Red Robin even failed to submit the version of the program Terms and Conditions in effect at the time of his purported enrollment. The subject change of venue motion is presently sub judice.

Avoiding TCPA Litigation – Honoring the Revocation of Consent and Developing and Maintaining Terms and Conditions is Crucial

Geraci’s claims are a cautionary tale. As we have previously blogged, his TCPA lawsuit may have been avoidable, had Red Robin merely honored his request to revoke consent. Moreover, the failure of Red Robin to properly maintain earlier versions of its online Terms and Conditions may have jeopardized strategic and substantive defenses provided therein, such as choice of venue.

It is imperative to both develop and maintain comprehensive Terms and Conditions applicable to any promotional program. Such provisions may provide for an alternative dispute resolution forum such as arbitration or, as in Red Robin’s case, may permit litigation in only a particular court or state. These provisions can provide material defenses to a TCPA lawsuit. As this blog has consistently recommended, it is critically important to retain experienced counsel to review telemarketing practices and procedures and develop comprehensive website (and in this instance, program) Terms and Conditions. Equally crucial is the need to maintain the earlier versions of Terms and Conditions, privacy policies, and other documents that were in effect and governed aspects of online consumer relationships.