TCPA Class Action Against Redbox Dismissed

Print Friendly, PDF & Email

On June 20, 2013, the United States District Court for the Southern District of California dismissed a putative TCPA class action that had been filed against Redbox Automated Retail, LLC (“Redbox”).

TCPA Class Action Facts and Analysis

blogpost4-17The Redbox plaintiffs alleged that they each received a text message from Redbox, to which they responded “STOP.”  One text message response was then sent by Redbox to each of the plaintiffs confirming that they had unsubscribed from the service.  The plaintiffs alleged that this text message violated the TCPA because they did not expressly consent to receive it.  Redbox filed a motion to dismiss the TCPA class action complaint for failure to state a claim.

In ruling in favor of Redbox and dismissing the TCPA class action, the Southern District of California looked at both the timing of the text message (sent in response to an opt-out request) and the substance of the text message.  The Court relied principally on two decisions: the Court’s own ruling in Ibey v. Taco Bell Corp., (“Ibey”), and the FCC’s declaratory ruling on the petition of SoundBite Communications, Inc. (“SoundBite).

The Ibey ruling held that a single, confirmatory text message sent after an opt-out request was received did not violate the language or spirit of the TCPA.   The SoundBite ruling further clarified that the sending of a one-time text message confirming a consumer’s request that no further text messages be sent does not violate the TCPA as long as the confirmation text does not contain any marketing or promotional information.

Importantly, both SoundBite and Ibey were premised on the consumer’s prior express consent to the initial receipt of text messages.  In its decision, the Redbox Court specifically noted that the plaintiffs did not allege one way or another whether they consented to the initial text messages received from Redbox.   The only allegation in the TCPA class action complaint was that no consent was given for the final opt-out confirmation text message.

Further, in examining the text messages themselves under the scope of the SoundBite ruling, the Redbox Court held that although they contained a link to the Redbox website, the messages themselves did not, on their face, contain marketing or promotional information.  Therefore, the Court held that as a matter of law, the content of the opt-out text messages could not form the basis for liability under the TCPA.

TCPA Class Action Dismissed Without Leave to Amend

Interestingly, the Redbox Court noted that any amendment to the TCPA class action complaint by plaintiffs would be futile and, therefore, rejected the plaintiffs’ request for leave to amend.  However, based on the Court’s reliance on the SoundBite and Ivey decisions, the mere addition of the allegation, if applicable, that the plaintiffs did not give Redbox prior express consent to send the initial text messages would, arguably, have salvaged the complaint on failure to state a claim grounds.

The bottom line – According to the Redbox Court, a text message sent in response to an express opt-out request is permissible under the TCPA as long as: (1) that text message does not include marketing or promotional information; and (2) express consent was previously given for the sending of text messages.

If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

Attorney Advertising

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin