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Judge Dismisses TCPA Class Action Because Plaintiff Was Unreasonable in Revoking Consent

A federal judge in New Jersey has dismissed a class action lawsuit filed by a plaintiff who did not follow proper instructions in revoking consent to be contacted by the defendant when receiving unsolicited text messages after alleging violations of the Telephone Consumer Protection Act.

The plaintiff attempted to use plain language messages such as, “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”, and “Again I want to stop this service thank you.” All the plaintiff needed to do in order to get the messages to no longer be sent was to reply “STOP”.

A copy of the ruling in the case of Nicole Rando v. Edible Arrangements International, Inc., can be accessed here.

Because every text message the plaintiff received included the instruction: “Reply HELP for help. STOP to cancel[,]” and each time she ignored those instructions and instead responded with her own revocation, the plaintiff did not use “reasonable” methods of revoking consent, which is required under the TCPA.

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. 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.”

In his ruling, District Court Judge Jerome Simandle cited another case, Viggiano v. Kohl’s, in which the plaintiff sued after attempting to revoke consent using plain language text messages instead of replying STOP.

The judge did leave the window on the lawsuit open a crack by noting that the complaint “only alleged the use of an ATDS in a conclusory fashion,” and allowed the plaintiff time to file an amended complaint.

 

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