Confirmatory Opt-Out Text Message Doesn’t Violate TCPA – Ibey v. Taco Bell

[Post by Venkat Balasubramani]

Ibey v. Taco Bell Corp., 12 CV 0583 (HVG) (S.D. Cal.; June 18, 2012)

Plaintiff responded to an invitation to complete a survey about Taco Bell and “voluntarily sent a text message . . . to the number 93138.” In response to his text, he received instructions on how to complete the survey. He then changed his mind and sent a “STOP” message. In response to the STOP message, he received a confirmatory text message from Taco Bell acknowledging that he would receive no further messages.

He sued, alleging that the confirmatory message violated the TCPA. Taco Bell moved to dismiss or in the alternative for summary judgment. The court grants the motion to dismiss.

The court says that plaintiff “expressly consented” to contact by Taco Bell, and that

[Taco Bell’s] sending a single, confirmatory text message in response to an opt-out request from Plaintiff, who voluntarily provided his phone number by sending the initial text message, does not appear to demonstrate an invasion of privacy contemplated by Congress in enacting the TCPA.

In order to assert a claim under the TCPA, the plaintiff must also allege that the text was sent using equipment that had the capacity to generate random or sequential numbers. (See Satterfield.) The court says that plaintiff failed to make this allegation. In fact, the court says that if the facts are as they had been pled by plaintiff, Taco Bell would be entitled to summary judgment. Although the court grants plaintiff leave to amend, judging from the tone of the court’s order, Ibey would be wise to drop his claims. (Ibey moved to reconsider the court’s order, you can access his motion here.)

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There has been at least one case going the other way – i.e., holding that even confirmatory opt-out messages can violate the TCPA. (See Ryabyshchuk v. Citibank.) This case is distinguishable from Ryabyshchuk on the basis that consent was not an issue here. Plaintiff admitted that he voluntarily texted Taco Bell in the first place. In any event, it’s nice to see this court come to the conclusion that should be glaringly obvious: a confirmatory opt-out message shouldn’t violate the TCPA or separately form the basis for liability.

This decision notwithstanding, companies should consider avoiding sending a confirmatory opt-out message to avoid the hassle of litigating these types of claims.

Related posts:

Group Text Services Grapple with TCPA Class Actions

Ninth Circuit Revives TCPA Claim–Satterfield v. Simon & Schuster

Cellphone Spam Violates TCPA–Joffe v. Acacia Mortgage

Text Spam Lawsuit Against Citibank Moves Forward Despite Vague Allegations of Consent — Ryabyshchuk v. Citibank

Court Rejects Constitutional Challenge to TCPA Based on Vagueness in “Prior Express Consent” Exception — Kramer v. Autobytel, Inc.

Another Court Finds that TCPA Applies to Text Messages — Lozano v. Twentieth Century Fox Film Corp.

Court Finds that SMS Spam Messages are Subject to the TCPA and Rejects First Amendment Defense — Abbas v. Selling Source, LLC

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