Appeals Court Upholds Ruling Dismissing Suit Against Individual Who Didn’t Follow Opt-Out Instructions

The Ninth Circuit Court of Appeals has affirmed a lower court’s decision to dismiss a Telephone Consumer Protection Act lawsuit because the plaintiff did not revoke consent to receive text messages in the proper manner.

A copy of the unpublished opinion in the case of Epps v. Earth Fare, Inc. can be accessed by clicking here.

All the plaintiff had to do was text STOP to no longer receive text messages from the defendant. But instead, the plaintiff sent messages that revoked consent but did not follow the proper instructions. Instead, the plaintiff used messages like “I would appreciate it if we discontinue any further texts” and “Thank you but I would like the text messages to stop can we make that happen,” and then sued the defendant when the messages did not stop coming.

“The district court properly dismissed Epps’ complaint after assessing the totality of the facts and circumstances surrounding Epps’ communications with Earth Fare, including the messages detailed in the parties’ text message log,” the Appeals Court wrote in its ruling. “In light of these facts and circumstances, including (1) the availability of a one-word opt-out procedure; (2) Epps’ unexplained failure to use the one-word opt-out; and (3) Earth Fare’s notice to Epps that it did not understand her non-standard messages, we agree with the district court that Epps failed plausibly to allege that she reasonably revoked her consent.”

This is not the first such case involving an individual attempting to revoke consent from receiving text messages by not following the proper instructions, and it does not appear as though judges have a lot of sympathy for individuals who choose not to follow the rules.

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