On December 28, ACA International, a trade association representing the credit and collection industry, filed its amicus, or “friend of the court,” brief in the Ninth Circuit Telephone Consumer Protection Act case Epps v. Earth Fare, Inc. The plaintiff, Jalen Epps, is appealing the district court decision, which held that although there was 12(b)(1) standing, she failed to state a claim due to her failure to use reasonable means to revoke consent to receive messages from Earth Fare, a health and wellness retailer.
Earth Fare asserted that Epps ignored repeated reminders that she could opt out by simply texting “STOP” at any time. Instead, she sent five text messages taking the form of complete sentences. For example, one stated: “I’m simply asking for texts to stop. I would appreciate that.” Earth Fare argued that these verbose “revocation requests” were designed to frustrate the company’s automated revocation mechanism.
Moreover, the Court took judicial notice of Epps’s multiple similar TCPA suits: “Plaintiff filed four TCPA lawsuits in district court between November 3, 2016 and December 6, 2016.” In addition to Earth Fare, Epps sued Office Depot, Dunkin’ Brands, and Walgreen Co.
Looking at the totality of these facts and circumstances, the Court concluded that Epps did not plausibly allege a reasonable method of revocation, as she did not explain why she did not follow Earth Fare’s clear instruction to text “STOP.”
In its amicus brief, ACA agrees with the district court holding that Epps had failed to state a claim, but goes further and argues that she also lacked 12(b)(1) standing, contrary to the district court’s view. The district court quoted the standard from Van Patten v. Vertical Fitness Group: “[A] violation of the TCPA is a concrete, de facto injury.” ACA argues for a stricter test for standing than the current one under Van Patten. ACA seeks an exception to Van Patten for a case brought by a plaintiff who “has procured the alleged violation of which she is complaining,” i.e., a bad-faith plaintiff bringing a “manufactured” lawsuit.
Many would agree with ACA that this case is a classic example of the TCPA abuse that results from its provisions allowing for substantial recovery amounts, calculated on a per-call basis, without any cap. Because the facts of this case are damaging to the plaintiff, ACA has found a good opportunity to use this case to set limits against rampant TCPA abuse. The decision in this case could, in turn, support a favorable decision in its own pending D.C. Circuit case, ACA Int’l, et al. v. Federal Communications Commission. In that case, ACA seeks to reduce the broad scope of the TCPA as the FCC has interpreted it. The outcome will be highly influential in subsequent TCPA cases. Notably, many courts have stayed TCPA cases pending the outcome in order to use the decision as guidance.
Troutman Sanders LLP has substantial industry-leading expertise on the TCPA, with experience successfully defending clients in court nationally and advising top companies regarding compliance strategies. We will continue to monitor regulatory and judicial interpretation of the TCPA in order to identify and advise on potential risks.