Epps v. Earth Fare Inc.
This month, the Federal Court in the Central District of California dismissed a TCPA case, delivering direct marketers a major win. In Epps v. Earth Fare Inc., plaintiff Jalen Epps sued organic grocer Earth Fare for alleged violations of the Telephone Consumer Protection Act (TCPA). Ms. Epps claimed that Earth Fare continued to send her marketing texts, despite her many attempts to opt out.
Complicating this case was that Ms. Epps had originally consented to receive promotional text messages from Earth Fare even though they do not sell products online. This is an important point because the nearest Earth Fare store was over two thousand miles away.
The Court found that she had failed to show that her revocation of consent was effective and failed to show that Earth Fare had used an automatic telephone dialing system (ATDS) to send the messages. Rather than using the key word "STOP" as a reply to opt out of marketing texts as instructed, Ms. Epps used longer messages such as, "I would appreciate if we discontinue any further texts."
The Court also determined that Ms. Epps' allegations that Earth Fare used an ATDS to send the messages were based on assumptions and not evidence.
“Defendant’s opt-out instruction would not have plausibly been more burdensome on Plaintiff”
The TCPA requires that marketers provide an opt-out mechanism for consumers to revoke consent. Because Earth Fare had such a process and repeatedly reminded Ms. Epps to use the key word “STOP” to revoke consent, the Court found that she could not claim the process had created a burden. The court noted, “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.”
Learnings: This is a great win for the direct marketing industry. It shows the importance of having TCPA compliant opt-out procedures in place to help defend against opportunistic plaintiffs. This case proves that when you operate within the guidelines of the TCPA you can come out ahead in the courts. Adhering to these changing guidelines can be difficult but we’re here to help. You can sign up for a complimentary strategy session with one of our team experts here.