Derek: Hello, everyone, Derek Johnson with tatango.com.
Today, we're talking about TCPA cases and the outcome of a TCPA case.
This one's actually a TCPA text messaging case, so it's extremely important for our
viewers.
So this is John Nelson.
He is a TCPA attorney, and today we're gonna be talking about one specific case which is
Epps v. Earth Fare.
And if you're not familiar with the courts, Epps, the first part is the person, verse
Earth Fare.
Earth Fare in the United States it's kind of like I guess a Whole Foods, a little smaller
Whole Foods.
John: Yes, very small.
Derek: Okay, so they're selling groceries and stuff like that.
So this person, Epps, that's their last name, right?
John: That's the plaintiff in this case, correct.
Derek: Okay, what do they complain...what was the issue that they had with Earth Fare?
Earth Fare sounds like a great little shop.
John: Sure.
So I guess we'll go with the short answer first or what the complaint said, you know,
that would at first make you think this is bad but, you know, really it isn't.
The plaintiff was alleging that she had at one point consented to receive text messages
for coupons, other marketing materials from Earth Fare.
Derek: So she opted in?
John: She opted in.
She claimed that she had texted back to the company revoking her consent to receive any
further messages, opting out, and claims that Earth Fare's system did not recognize her
opt out, did not opt her out and continued to send her more and more messages.
Derek: Okay, so that's super bad, right?
John: Super bad.
That is your very typical TCPA violation right there.
Derek: If you opt out and every single text message after that, anywhere from $500 to
$1,500 per text message.
And also as a brand, Earth Fare, that's just not very nice to send your, you know, your
customers spam essentially.
John: Correct.
Derek: But this case was thrown out.
John: It was thrown out.
Derek: And Earth Fare won.
So what went on here?
John: So after the plaintiff, Epps, had filed her complaint, Earth Fare had moved for a
motion to dismiss.
And essentially what that means is that based on the allegations made in the complaint and
the evidence that the court has received up to this point, Earth Fare was claiming that
Epps had not produced, you know, enough to plausibly...for the court to plausibly conclude,
you know, that Earth Fare had been liable for this issue, that they were actually in
fault.
Derek: But aren't they at fault, like shouldn't they be?
John: They're not and what they claimed was that in the plaintiff's complaint, she failed
to plausibly allege that she had revoked her consent to be contacted.
Derek: Okay, so non-legal speak, what does that mean?
John: What that means is that she had not correctly opted out such that she was still
opted in, meaning that all of the messages she had continued to receive were legally
allowed under the TCPA.
Derek: Because what was she...she was texting back stop or unsubscribe?
John: She was not.
She was receiving....each message she received from Earth Fare contained at the end, you
know, something along the lines of text stop to stop, very clear guidelines.
What she was texting back, and we've seen this in a lot of other cases, were complete
sentences.
So some examples I have are she would receive a message, she would respond back, "I would
appreciate if we discontinue any further texts.
Thank you, but I would like the text messages to stop.
Can we make this happen?
I'm simply asking for text to stop.
I would appreciate that, thanks."
Derek: So anything but stop, unsubscribe, quit.
John: She was being polite, she was being polite...
Derek: But a little circumvent.
John: She wasn't following those...
Derek: The instructions.
John: ...guidelines.
And what the Earth Fare was alleging was that she had opted out in an unreasonable manner.
Derek: She attempted to opt out.
John: She attempted to opt in an unreasonable manner.
Derek: In the lawsuit, did she actually give Earth Fare the messages that she was trying
to text in?
John: She did.
Derek: Okay, so she essentially gave them...
John: She did and you will see this in a lot of professional plaintiff's cases, they will
keep a caller log of every message that they receive from the brand because they want to
make sure they're getting their $500 per message.
And essentially what these messages were showing was that contrary to Earth Fare's...
Derek: The instructions.
John: ...texts that clearly asked please stop to stop, she was not doing this.
And then what the brand had alleged was that, you know, under the TCPA, marketers and brands
and callers are only required to opt out those people who opt out reasonably.
And what it claimed was that these complete sentences, you know, were not a reasonable
manner to opt out when she clearly knew, you know, there were easy-to-follow instructions
on how to opt out.
And this case, the district court portion of this, it was an appeal, was decided before
actually a major TCPA case came out of DC Circuit, ACA International.
And what a lot of cases have been signaling and what the DC Circuit signaled was that,
you know, we understand that brands are required to honor reasonable opt outs, but they are
not required to honor all opt outs.
There are certain opt outs that we are going to, you know, possibly infer as unreasonable,
and this can very much be the case where the consumer does not follow easy-to-follow opt
out instructions.
And essentially, this is what Earth Fare was arguing here, that Epps had been presented
with a very clear easy follow way to opt out.
Text stop to stop.
Derek: And that's the carriers require that, the CTI requires it.
Any consumer if you are on a text message, you know, marketing list, it is the best way
to opt out.
John: It is.
Derek: She just did everything except that, it seems like.
John: Correct.
And what the court ultimately concluded was that her method of opting out was unreasonable.
And in making this conclusion, they really relied on two, I guess, key facts.
The first was that she had received very clear instructions on how to opt out.
Derek: At the bottom of the text message.
John: At the bottom of every text message.
38 text messages all saying text stop to stop.
Derek: So that's a great thing because the CTIA, the carriers kind of waver on that specific.
They say it has to be in there on I think a monthly basis or something.
At Tatango, we're always like it's best if you have the characters, put it in there because
when these type of things happen it makes it such an easier argument when you're like
looking at the text message and you're like, it says text stop to stop and you're not doing
it.
But if you don't have that in there, it's a little more kind of grey.
You got to argue that they should have known how to do it.
John: It is and certainly, you know, and all cases are different but I would I would venture
a guess that if that hadn't been in there on every text message, you know, I don't know
if the court would have gotten rid of this case as quickly as it did.
It may have let it go on a little while longer to kind of draw out what is reasonable, what
is unreasonable in terms of an opt out.
Derek: Because again these judges don't live and breathe text message marketing every day.
John: No, they don't.
Derek: These judges are just regular judges, so they might not even know that you can reply
stop to a text message.
So it is very kind of scary.
So I do recommend most brands either they do it in every message or they do it kind
of on a consistent basis just to make sure the customer...number one, make sure the customer...because
the TCPA is one thing.
But also, if the customer just doesn't want to be part of [inaudible 00:08:29] list and
they just really don't know how to opt out, you don't want that person on your list.
Even if they're not gonna sue you, it's just a bad experience.
So having those instructions all the time where they're like, "Oh, I can always opt
out.
This is a great experience and when I want to opt out, I can."
So it's kind of like yes, you have the law side but then also you have just kind of respecting
your customers, you know, relationship with them.
So that's interesting.
John: And so, you are very much correct and we also recommend that you include this language
because, you know, it will protect you just generally, it will also protect you from professional
TCPA plaintiffs.
And getting back to the court's conclusion, this was another kind of fact and area where
they wanted to conclude that her opt out was unreasonable.
She was most certainly a professional plaintiff because what they had found and what Earth
Fare had presented were other cases where Epps specifically had been doing the same
thing to other brands: opting in, sending back these long statements rather than simply
replying stop, and then suing them.
Derek: So professional plaintiff is somebody that understands the law or thinks they understand
the law and they're essentially kind of going after companies for either grey areas or actually
they are violating the law.
John: Correct.
Derek: They do this for a living, professionally.
John: Yes, they're trying to, and the court used these words, manufacturer litigation,
and that's certainly what she was doing here.
You know, she had texted...she was a resident of California, had texted Earth Fare which
I'm not sure where they operate but I remember from the opinion noting that it was a chain
2,000 miles away from where she lives.
Derek: So she's just looking for SMS campaigns.
John: Didn't operate online, wasn't near her or anything.
You know, the facts were stacked up against her from the beginning.
But really I think what helped Earth Fare get out of this at such an early stage was
that they had constantly told her text stop to stop.
Derek: Well, one thing I found interesting is you can always use these professional plaintiffs
to almost help your brand.
One thing I heard you say is they kept the plaintiff, the person, the consumer kept meticulous
records of every single text message.
I know brands, not that use Tatango, but other brands that they have very limited records,
so when...
John: Never a good idea.
Derek: Yeah, when they look up a phone number, they when they opted in but they don't know
every single message they've ever sent that, you know, person, or if they've switched short
codes they don't have both sets of records.
It seems like, you know, thankfully this consumer brought the records to the court but it could
have been the other way where the brand would have had to show every single message in that
it had stop and that she replied with all these crazy kind of statements.
It just shows that brands need to keep every, not just the mass message, every inbound,
outbound from every single phone number, from really the start of their SMS campaign.
John: It's very important because, you know, when we get to TCPA cases and a consumer is
alleging they revoke their consent or never provided you with your consent, you as a brand
can't just come in and say, "Oh no, they consented, they consented."
Derek: Yeah, you have to prove it.
John: You know, you have to prove it.
That's your burden to prove and it's your burden to prove that each and every one of
those messages was a consent given message.
So the more records you have, you know, the more you keep, the better off you are, you
know, the quicker you can dispense with these cases.
Derek: Yeah, because really data at the end of the day doesn't lie, most of the time.
John: No, yes.
Derek: One thing I think that is good to know because people watch these videos and then
some of them, unfortunately, do get attacked by these professional plaintiffs, this happened
not at the...this court case wasn't at the Supreme Court level.
John: No, it was not.
So originally it was a district court case in which the district court had granted Earth
Fare's motion to dismiss, which gets rid of the case, terminates it there.
Plaintiffs, of course, from final decisions like this can appeal to next level.
Now, this case I believe was in the Central District of California federal court.
It was one of the federal district courts in California.
That's in the Ninth Circuit.
So if the plaintiff wants to appeal, that's where she must appeal.
She cannot appeal directly to the Supreme Court.
And that's what she did here.
But in a very short one-page opinion, the Ninth Circuit reviewed the facts that were
presented to that district court judge, the complaint, everything that had been exchanged,
and pretty immediately concluded that based on the facts the judge had interpreted, you
know, or made the correct ruling.
Derek: So and I guess what I'm trying to get at is this, if you're watching this video
and you do receive let's say a threat of a lawsuit and you're maybe in New York or Florida
or something, this video in this case does not mean you can just...you're like, "Oh,
this has already been resolved.
There's already case law," like it has to go to like the highest court to go down to
the...
John: And this particularly is extremely case specific.
You can use the tactics that this defendant used.
You know, you can adapt them from other cases, you can cite to those cases in the event you
are sued, you know, but it's very important to know that each case's results are specific
to that case.
Derek: So this doesn't protect SMS marketers from this type of thing going forward?
John: It does not.
It's a good sign.
It shows that courts are finally catching up with what we've been saying, that professional
plaintiffs are trying to get out of this...professional plaintiffs are trying to manufacture litigation,
get around the rules, you know, and that there should be ways of opting out that, you know,
courts find unreasonable because they simply aren't something that a normal person would
do if they're trying to stop these messages.
Derek: But this is still a threat, like if you do see these kind of messages being sent
into your system, that's usually the best time to start engaging with an attorney, just
kind of proactively.
And it's not something where it's like, "Oh no, no, no, it's okay, Earth Fare has figured
it out."
John: Not at all, no.
That is specific to that case only.
In the event that's happening to you, you should not rely on this opinion or this outcome
is protecting you in any sort of way.
That plaintiff can still sue you and if you have the wrong judge and the same facts, they
could still reach the other way.
But it's important to engage an attorney, a TCPA attorney, you know, if you're noticing
these messages or if you've seen some sort of letter...
Derek: And it's pretty obvious.
We've seen them before, it's pretty obvious because it's not stop and quit, you know,
unsubscribe.
It's extremely long sentences of...
John: Or poems sometimes.
Derek: Yeah, it goes against everything a normal person would most likely do to try
to opt out.
John: It does and if you see that, you can almost guarantee the person is likely a professional
plaintiff and, you know, you can expect something, some sort of lawsuit reasonably soon.
Derek: And that's why it's so important.
Keep the message history, everything, again every single message in and out.
Because if they're texting stuff in and you only keep messages that go out, you cannot
go to your attorney and discuss the whole message flow.
It makes it very hard and then it really puts things in kind of a precarious situation.
If you can, put in the instructions to opt out in the message.
Nice thing about MMS is it gives you a ton of characters so you always can put it in
there.
SMS, it's 160 characters, so the CTIA carriers, they usually say try to on a frequent basis
put it in.
I see some clients, they'll have a big message and they can't fit it in but then the next
message they put it in.
You want to have it so that a judge that has no knowledge about text message marketing
looks at it and goes, "Oh that seems pretty reasonable.
It's every other one, it's every one."
You don't want to make this so hard where they're like, "Well, on November fifth, you
said to stop, you know, reply in one message and then next year, you..."
Like, I the judge would look at that and go, "That doesn't seem very....that's not the
best instructions you provided."
John: And what we've recommended to our clients and others is that, you know, follow the CTI
guidelines.
The CTI guidelines aren't part of the TCPA law.
Following them does not mean...
Derek: Protecting.
John: ...you aren't violating the law.
But if you're following those guidelines, chances are you are acting reasonably and
you can use that as evidence in the event that you are sued.
Derek: That's great.
Okay, that is another TCPA case review.
This was Epps v. Earth Fare and it got thrown out.
It got thrown out twice essentially, right?
John: Thrown out and then affirmed.
Derek: Affirmed, okay.
John: Should be gone for good now.
Derek: Okay, that's always good.
But this person is a professional plaintiff, they've been known to do this in the past.
So it is, again, the advice we're giving you, this is not something that's been resolved,
this is something I think that people need to be aware of.
And luckily, we've been talking to somebody that is very aware of it who is a TCPA attorney,
John Nelson.
My name is Derek Johnson with tatango.com and again we are answering not only questions
on TCPA compliance and how brands should be, you know, dealing with all these issues, but
looking at actual court cases, TCPA court cases and figuring out how they impact your brand.