How To Obfuscate An SMS Opt-Out

Beware Of Unconventional Opt-Outs

Rando v. Edible Arrangements
Class Complaint – Plaintiff joined, then withdrew from an Edible Arrangements (EA) text program. Plaintiff alleged the texts continued after she attempted to opt-out. Her attempts included sending the following via text message:

  • 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.”
  • Again I want to stop this service thank you.”

Plainitff alleged EA told her the only way to opt-out was to text “STOP.”
[D. N.J.; 1:17-cv-00701]
jbho: it seems pretty clear plaintiff was gaming EA. Nonetheless, a reminder you should consider building some intelligence into your opt-out processing to recognize such ‘unconventional’ opt-out requests – at least until the FCC or Congress build some structure around revocation of consent.

UPDATE: 28Mar2018 – dismissed (leave to amend). The court found that although plaintiff had standing (a single call was sufficient to sustain allegations of a concrete, albeit intangible, harm), plaintiff did not reasonably revoke her consent.

Every text message EA sent ended with “Reply HELP for help. STOP to cancel,” and it was undisputed Plaintiff never replied using the single word STOP. Although plaintiff eventually began to reply using permutations of STOP:

  • “I asked to be removed from this service a few times. Stop the messages”
  • “Again I want to stop this service thank you[.]”

she never replied “STOP” by itself.

Given the “totality of the facts and circumstances,” plaintiff did not “clearly express () a desire (to) not to receive further messages.” EA’s method of revocation – even if exclusive – was not “difficult or impossible to effectuate.” To the contrary, plaintiff failed to demonstrate her chosen method of revocation was reasonable. The court found that a reasonable person would have attempted to reply “STOP” – per the instructions – at some point in the back-and-forth of text messages. Since plaintiff ignored clear instructions, and chose a more burdensome revocation method, the court granted EA’s motion to dismiss for failure to state a claim under the TCPA.

However, the court acknowledge that amendment may not be futile, so allowed plaintiff the opportunity to explain why, under the totality of the circumstances, her revocation attempts were reasonable.

I have a feeling plaintiff may try to replead liability for the replies where ‘stop’ was in the reply, since most short code providers can (or should be able to) recognize STOP anywhere in the reply. However, I think this will ultimately go the way of Viggiano v. Kohl’s (D. N.J.; 3:17-cv-00243), and Epps v. Earth Fare (C.D. CA; 2:16-cv-08221), where the courts have said reasonableness of revocation is an obligation on all parties.

After all, what could be simpler than texting “STOP”?

More TCPA Fun

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