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Phoney Lawsuits: TCPA plaintiff didn't really want texts to STOP, group claims

Legal Newsline, January 31, 2018

By: Carrie Salls

A woman who couldn't follow directions to "STOP" receiving text messages shouldn't be allowed to sue over them, a group representing the interests of credit and collections professionals says.

Minnesota-based ACA International on Dec. 28 filed a friend-of-the-court brief with the U.S. Court of Appeals for the Ninth Circuit to support Earth Fare Inc., a defendant in a Telephone Consumer Privacy Act case.

Plaintiff Jalen Epps has appealed a ruling in which the U.S. District Court for the Central District of California denied Earth Fare’s motion for dismissal for lack of standing and instead dismissed the complaint only for failure to state a claim.

Epps shouldn't have standing to sue, ACA says.

“This case illustrates an issue that affects the credit-and-collection industry (and other industries) in numerous cases: whether a plaintiff who deliberately and voluntarily procures a defendant’s alleged violation of the Telephone Consumer Protection Act has standing to claim relief for the violation that the plaintiff procured,” ACA said in its brief.

Rather than respond "STOP" to preclude further texts from the company, Epps instead typed back, "I would appreciate if we discontinue any further texts” or “Thank you but I would like the text messages to stop can we make this happen.”

Court records show the case against Earth Fare is one of six filed by Epps. He is represented by Scott Ferrell of Newport Trial Attorneys.

Epps' attorneys argued that she had standing under the U.S. Supreme Court's Spokeo decision, which requires a plaintiff to have suffered a concrete and particularized harm, when it fought Earth Fare's initial motion to dismiss.

"The Spokeo decision, which reiterated longstanding principles of Article III standing, expressly noted that it had long recognized intangible injuries as actionable," Epps' attorneys wrote a year ago.

"Notably, Defendant’s Motion fails to even mention the word 'intangible' even once in a blatant attempt to implicitly argue that 'actual injury' is limited to a tangible injury such as an economic injury.

Epps also countered Earth Fare's mention on the Stoops case from Pennsylvania. In it, a woman admitted she purchased 35 cell phones with different numbers for the purpose of gathering telemarketing and debt collection calls that would become the foundations of TCPA cases.

It is a practice alleged to have been conducted by several other plaintiffs, but Stoops actually admitted her scheme during a deposition.

“Several courts have addressed the issue of serial plaintiffs procuring ‘violations’ of the Telephone Consumer Protection Act in order to claim the generous damages for which the act provides, and have held that serial plaintiffs who procure such alleged violations lack standing,” ACA said.

In addition, ACA said that, although the act applies to both telemarketing calls and non-telemarketing calls, it “has been aimed at telemarketing calls.” ACA also said “Earth Fare is not a telemarketer.”

“If Ms. Epps can sue Earth Fare for text messages that she asked Earth Fare to send her, then no business that sends text messages or uses a predictive dialer is safe from the game that Ms. Epps and other serial plaintiffs are trying to play,” the brief said.

The trial court ruled Epps' “alleged revocation of consent to receive text messages from the defendant was not ‘reasonable.’ Despite being prompted to text ‘STOP’ if she wished to revoke her consent, the plaintiff responded instead with long sentences such as ‘I would appreciate [it] if we discontinue any further texts’ or ‘Thank you but I would like the text messages to stop can we make this happen.’”

Earth Fare argued that Epps’ “responses had been deliberately designed to frustrate its automated system for recognizing revocations of consent.”