On Friday, October 26th the Ninth Circuit upheld the Central District of California’s dismissal of plaintiff Jalen Epps’s First Amended Complaint for Earth Fare, Inc.’s alleged violation of the TCPA and California’s Unfair Competition Law. Epps is considered an “Opt-Out evader”—she has multiple suits pending against retailers with identical allegations. She consents to receiving text messages from various retailers, only to respond to the text messages with verbose sentences like “I’m simply asking for texts to stop. I would appreciate that. Thanks,” instead of complying with the text messages’ built-in opt-out instructions.
Earth Fare is a health and wellness supermarket. Epps is a consumer who consented to receive commercial text messages from Earth Fare in October 2016. She claims that she revoked consent via five text messages that she sent Earth Fare over the course of two months, but that Earth Fare continued to send her text messages.
Earth Fare defended Epps’s allegations on the grounds that Epps failed to reply to any of Earth Fare’s text messages with its simple revocation command: “STOP” but rather she purposefully set them up for suit by sending them non-conforming texts that their system failed to recognize as an opt-out request. For example, one such reply was: “I would appreciate [it] if we discontinue any further texts.”
FCC rules “require callers give consumers a direct opt-out mechanism such as . . . a reply of ‘STOP’ for text messages.” Earth Fare provided this mechanism in its text messages, but Epps “ignored” the use of the STOP command and chose instead to respond with sentences that their system would not understand. As such, the district court ruled that her efforts to revoke consent were unreasonable and ineffective under the totality of the facts and circumstances surrounding her communication with Earth Fare. Epps appealed.
The Ninth Circuit reviewed the text message log between Epps and Earth Fare. It also considered her other suits and ultimately agreed with the district court in its conclusion that Epps failed to plausibly allege that she reasonably revoked her consent.
Note that the district court had also ruled that Epps failed to allege Earth Fare’s use of an automatic telephone dialing system (“ATDS”)—but the Ninth Circuit declined review of the ATDS issue given its ruling on the lack of plausible factual allegations in Epps’s First Amended Complaint.
As mentioned this is not Epps’s only attempt to recover for text messages she received from retailers. Epps brought identical suits against Gap, Office Depot, Walgreen Co. and Dunkin’ Brands Group, Inc.
The Ninth Circuit’s recognition and rejection of the opt-out evasion practice in the Epps case is great news for companies having to deal with customers who engage in this behavior. It also provides support for the TCPA defense that companies may dictate the manner in which customers may revoke their consent—so long as the method is “direct” to comply with the FCC’s rules.