TCPA SMS Marketing Lawsuit – Epps v. Earth Fare

Under the Telephone Consumer Protection Act (TCPA), marketing companies may have to pay from $500 to $1,500 per text message for every message they send to consumers who have opted out. Unfortunately, these hefty fees have incentivized professional plaintiffs to sue unprepared text message marketers. In this blog post, we review the TCPA lawsuit Epps v. Earth Fare, Inc., and provide guidelines to protect companies against professional plaintiffs.

Summary of Epps v. Earth Fare, Inc. 

Earth Fare, Inc. is a wellness supermarket that sells natural and organic food in the southwestern region of the United States. Plaintiff Jalen Epps opted in to receive coupons and deals from Earth Fare’s text message marketing campaign. Epps claimed she eventually opted out of the communication, but Earth Fare’s system didn’t recognize her messages. A few messages Epps sent to opt out were:

• “I would appreciate it 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.”

Earth Fare alleged Epps attempts to opt out were unreasonable. Every text message sent to Epps contained easy-to-follow instructions stating, “Text STOP to stop receiving messages.”  Epps failed to prove she had correctly opted out, and Earth Fare moved to dismiss based on the lack of evidence. 

Upon further review, Earth Fare submitted evidence that Epps had a pattern of opting into text messaging communication, sending long-form statements attempting to opt out, then suing companies. The district court found that Epps was attempting to manufacture litigation. The case was dismissed. The District Court judge concluded that her method of opting out was unreasonable. Epps filed an appeal, but the court agreed with the judge’s decision.

Protect Yourself from Professional Plaintiffs

Professional plaintiffs know it’s the text message marketer’s burden to prove they’ve provided a reasonable option to opt out of communication. The Cellular Telecommunications Industry Association (CTIA) suggests a monthly, easy-to-follow reminder to consumers on opting out. At Tatango, we recommend you use all 160 characters and include the instructions to opt out in each message you send to consumers. Our software even detects natural language, so if consumers use words other than STOP, your brand is still protected to some degree.

Keep in mind, CTIA guidelines aren’t a part of TCPA law. Following these guidelines doesn’t mean you’re protected. If you’re following those guidelines, chances are you’re acting reasonably, and you can use that as evidence if you’re facing a lawsuit.

Stay updated on text message marketing case studies, but remember the judge’s decision to dismiss the Epps v. Earth Fare, Inc. case doesn’t protect all marketers from the threat of future litigation. However, it’s a good sign that courts are finally listening to SMS marketers about the issue of professional plaintiffs. We understand that brands are currently required to consider reasonable opt-outs, but they’re not required to honor all opt-out requests. Judges may determine certain opt-out requests—like the long-form messages Epps sent to Earth Fare—are unreasonable, particularly when the consumer doesn’t follow easy opt-out instructions provided by the text message marketer.

Contact a TCPA attorney if you notice a pattern of unusual incoming messages. An attorney well versed in TCPA law can assist your company if a professional plaintiff makes you a target. 

Tatango Can Help You Meet TCPA Requirements

As an industry leader for more than 13 years, Tatango helps clients ensure they meet TCPA opt-in and opt-out requirements to reduce the risk of litigation. Check out our TCPA Survival Guide and work with one of our SMS Marketing experts to find proactive solutions.