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Edible Arrangements Beats Opt-Out Evading TCPA Plaintiff in Post-ACA Win

pexels-photo-351707.jpegThe recent case of Rando v. Edible Arrangements Int’l, LLC, No. CV 17-701(JBS/AMD), 2018 WL 1523858 (D.N.J. Mar. 28, 2018) is the classic opt-out evader scenario – where the consumer would send long-winded text messages requesting texts to stop instead of simply replying “STOP” as instructed.  The scam is that the consumer knows the text message system would not recognize these long phrases and thus texts would continue. The Rando Court saw right through the act and very firmly put a stop to it. In doing so, it drove home the requirement that revocation must be made in a reasonable manner given the totality of circumstances.

In the Federal Communication Commission’s (“FCC”) 2015 Omnibus Ruling, it set forth the rule that that revocation must be reasonable and whether a method was reasonable is dictated by the totality of circumstances.  This specific portion of the 2015 FCC Order was further upheld in the D.C Circuit’s decision in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

In Rando, Plaintiff Nicole Rando brought an action against Edible Arrangement claiming violation of the TCPA when it sent her text messages using an ATDS after she had withdrew her consent.

Edible Arrangement sought to dismiss the suit arguing that 1) Plaintiff lacks standing and 2) Plaintiff failed to state a claim because Plaintiff does not plausibly allege that her method of revocation was reasonable.  Judge Jerome B. Simandle rejected the standing argument finding that “Plaintiff alleges that she is a person directly aggrieved by the statutory violation she alleges, and the Court therefore concludes she has Article III standing.” Rando, 2018 WL 1523858 at *3.

The Court, however, dismissed the case on the grounds that Plaintiff’s method of revocation was not reasonable.  Plaintiff sought to stop text messages sent from Edible Arrangement, but when presented with the reply message: “Reply HELP for help. STOP to cancel,” Plaintiff failed to follow directions and instead sent ten separate messages containing natural language requesting texts to stop.  For example:

  • “Take my contact info off please”
  • “I want to confirm that I have been removed off your contacts”
  • “I asked to be removed from this service a few times. Stop the messages.”
  • “Again I want to stop this service thank you”

The court held that, “in the totality of the circumstances, a reasonable person seeking to revoke consent would have tried, at least at some point during the back-and-forth, simply replying ‘STOP’ to cancel—as instructed, rather than ignoring Defendant’s revocation method and sending ten long text messages to that effect, most of which did not include the word ‘stop’ at all. There can be no question on these factual allegations but that Plaintiff did not comply, nor even attempt to comply, with the apparently simple directions repeatedly given to her.” Rando, 2018 WL 1523858 at *7.  Accordingly, the Court dismissed Plaintiff’s complaint finding that she did not plausible state a claim for relief under the TCPA.

While the Rando Court did not specifically cite to the ACA decision, it very clearly adopted the reasonableness of revocation discussion in the ACA ruling.  The ACA court found that “[i]f recipients are afforded [clearly-defined and easy-to-use-opt-out methods], any effort to sidestep the available methods in favor of idiosyncratic or imaginative revocation requests might be seen as unreasonable.” ACA Int’l, 885 F.3d at 709–10. The ACA further states “The selection of an unconventional method of seeking revocation might also betray the absence of any ‘reasonable expectation’ by the consumer that she could ‘effectively communicate’ a revocation request in the chosen fashion.”  Id.

What Rando illustrates is that that reasonableness of revocation is still a hurdle that Plaintiffs must overcome when asserting their TCPA claim. Thus, opt-out evaders beware – your efforts to creatively revoke will not be tolerated by the Courts.

Now, that’s a ruling even tastier than a chocolate covered pineapple.

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