ACA International Files Amicus Brief with Court of Appeals in Case Combatting TCPA Abuse Trend of ‘Unreasonable Revocation of Consent Methods’

ACA supported the district court’s decision that the consumer’s revocation of consent was not “reasonable” under the TCPA and also argued that serial plaintiffs who procure alleged TCPA violations lack standing to sue.

1/22/2018 9:00:00 PM

Industry Advancement ProgramNewsTCPA

On Dec. 28, 2017, ACA International filed an amicus curiae (“friend of the court”) brief with the Ninth Circuit Court of Appeals in the case of Epps v. Earth Fare, Inc.  The key issues before the appellate court are: 

1) Whether the plaintiff’s unusual methods of purporting to revoke her prior consent constituted a “reasonable” or “effective” method under the Telephone Consumer Protection Act and;

2 Whether a plaintiff who deliberately and voluntarily procures a defendant’s alleged violation of the TCPA has standing to claim relief for the violation that the plaintiff procured. 

In the underlying case of Epps v. Earth Fare, Inc., No. 16-08221, 2017 WL 1424637 (C.D.Cal. Feb. 27, 2017), the U.S. District Court for the Central District of California found, as a matter of law, that the plaintiff’s alleged revocation of consent to receive text messages from the defendant was not “reasonable.” Despite being prompted to text “STOP” if she wished to revoke her consent, the plaintiff  responded instead with long sentences such as “I would appreciate [it] if we discontinue any further texts” or “Thank you but I would like the text messages to stop can we make this happen.” Noting that this was one of several similar suits filed by the same plaintiff, the defendant moved to dismiss and argued that her responses had been deliberately designed to frustrate its automated system for recognizing revocations of consent.  The district court agreed and dismissed the case with prejudice. In doing so, the district court wrote:

The totality of the plausibly alleged facts, even when viewed in Plaintiff’s favor, militate against finding that Plaintiff’s revocation method was reasonable. Without explanation, Plaintiff ignored Defendant’s clear instruction to stop the messages. Furthermore, although Plaintiff is correct that Defendant “may not abridge [Plaintiff’s] right to revoke consent using any reasonable method,” and “may not deliberately design systems or operations in ways that make it difficult or impossible to effectuate revocations,” Plaintiff has not plausibly alleged any such burden here. In fact, heeding Defendant’s opt-out instruction would not have plausibly been more burdensome on Plaintiff than sending verbose requests to terminate the messages. In sum, Plaintiff has not plausibly alleged that her revocation was effective.

As ACA continues to anxiously await a decision from the U.S. Court of Appeals for the D.C. Circuit in its appeal from the Federal Communications Commission’s July 2015 Omnibus TCPA Declaratory Ruling and Order and its “any reasonable method” ruling, ACA also recognizes that other courts in the judicial system can provide another avenue to rein in TCPA abuse.

Therefore, given the staggering number of TCPA filings that have continued to dramatically increase in the last two years following the FCC’s ruling, ACA submitted its “friend of the court” brief to the Ninth Circuit to combat the TCPA trend of “revocation of consent” claims based on “unreasonable revocation methods” manufactured by entrepreneurial plaintiffs while, at the same time, helping to define, at least in the Ninth Circuit, what it means to effectively revoke consent using a reasonable method under the TCPA. In doing so, ACA asked the Ninth Circuit to affirm the district court’s decision to dismiss the case because the plaintiff’s chosen method of revocation was entirely unreasonable and, therefore, ineffective—and without an effective revocation, the plaintiff’s consent to receive the defendant’s messages also deprived her of standing to sue. ACA argued that such a ruling from the Ninth Circuit would help “legitimate, compliant, law-abiding actors who are trying to run their businesses without being played by plaintiffs who would abuse the law and the courts for selfish gain, and manufacture the very ‘violations’ of which they complain.”

ACA’s efforts to proactively support the industry are part of ACA’s Industry Advancement Program and are made possible by funding through ACA’s Industry Advancement Fund. Stay tuned for further developments. ACA International will continue to provide more information to its members as this case progresses and when any decisions concerning the case are made by the Ninth Circuit Court of Appeals.   

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