Defendant’s Revocation Method Was Reasonable, Ending Suit

by Manatt, Phelps & Phillips, LLP
Contact

Manatt, Phelps & Phillips, LLP

Edible Arrangements did not run afoul of the Telephone Consumer Protection Act (TCPA) by making it unreasonably hard for text recipients to revoke their consent, a New Jersey federal court has ruled.

Although she initially consented to receive text messages from Edible Arrangements, Nicole Rando later attempted to withdraw her consent. In one text she wrote, “Take my contact info off please,” and in another, “I want to confirm that I have been removed off your contacts.” Other attempts included “I asked to be removed from this service a few times. Stop the messages” and “Again I want to stop this service thank you.”

When the messages continued, Rando filed a TCPA putative class action. She claimed the defendant impermissibly designated an exclusive means for the revocation of consent in violation of the statute.

In defense, Edible Arrangements noted that every text message sent to the plaintiff ended with the words “Reply HELP for help. STOP to cancel.” Despite this clear instruction, Rando never replied using the single word “STOP” and instead sent ten separate messages containing natural language to express her desire to stop receiving the texts.

Such language would, if read by a human being, clearly indicate a desire to revoke consent to receive text messages, U.S. District Judge Jerome B. Simandle said. But that same language was not accepted by the defendant or its computerized texting service to halt the texts. Rando argued that her attempts at revocation were reasonable and that the defendant effectively designated an exclusive means of revocation. The defendant characterized her messages as unreasonable under the circumstances.

For guidance, the court turned to the Federal Communications Commission (FCC) and New Jersey case law. “When assessing whether any particular means of revocation used by a consumer was reasonable, we will look to the totality of the circumstances surrounding that specific situation,” the FCC explained.

The court also cited to Viggiano v. Kohl’s Department Stores, Inc., where the plaintiff similarly attempted to revoke her consent with messages such as “I’ve changed my mind and don’t want to receive these anymore” and “This is your last warning!” The court in that case rejected the plaintiff’s argument that she had reasonably conveyed her desire to be removed from the marketing list by ignoring the defendant’s instructions to text “STOP” to cancel.

“Accordingly, the Court cannot agree that Plaintiff states a claim for a violation of the TCPA where she alleges only that a caller designated an exclusive means of revoking consent; Plaintiff must also allege that the designated exclusive means for revoking consent made it difficult or impossible to effectuate her actually-attempted revocation, and that her chosen method of revocation was reasonable,” the court wrote. “This is so because her method of revocation must be reasonable to be effective, and without an effective revocation of consent, a plaintiff cannot state a claim that she was called without her consent.”

Applying this analysis to Rando, Judge Simandle said Rando failed to allege facts supporting a plausible claim that she revoked her consent using a reasonable method.

“When presented with the direction ‘Reply HELP for help. STOP to cancel,’ Plaintiff instead replied: ‘Take my contact info off please.’ While she did not, as in Viggiano … receive a responsive text message saying that her text was not understood, she nevertheless continued to receive text messages ending with the directive ‘Reply HELP for HELP. STOP to cancel’ and continued to respond in the same unproductive manner.”

In light of the facts, the plaintiff did not state a claim that she used a reasonable means of revoking her consent, in part because she did not have a reasonable expectation that she had effectively communicated her request for revocation, the court said.

“The Court finds 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,” the court concluded. “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: ‘Reply … STOP to cancel.’”

Rando’s failure to follow the apparently clear and non-burdensome opt-out instructions remains unexplained, Judge Simandle noted, but he granted the motion to dismiss without prejudice, allowing her the opportunity to address the deficiencies in her complaint.

To read the opinion in Rando v. Edible Arrangements International, LLC, click here.

Why it matters: The decision adds to the growing body of case law (along with Viggiano, cited for support in the opinion) recognizing that plaintiffs cannot hang their hat on any means of revocation possible. Instead, the court considered the totality of the circumstances to find that the plaintiff’s wordy responses were not a reasonable means of revoking consent, particularly where each text she received instructed recipients “Reply STOP to cancel.”

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Manatt, Phelps & Phillips, LLP | Attorney Advertising

Written by:

Manatt, Phelps & Phillips, LLP
Contact
more
less

Manatt, Phelps & Phillips, LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.