Defendant’s Revocation Method Was Reasonable, Ending Suit

by Manatt, Phelps & Phillips, LLP

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.

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