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We spend a lot of time on this website discussing the dangers inherent in third-party lead generation, but not enough time is spent on the dangers of more basic processes to obtain consumer opt-in.
For instance, even the fairly reliable practice of having consumers enter phone numbers to opt in to text clubs as part of a point of sale transaction has its TCPA risks.
Consider the case of Abboud v. Circle K 2025 WL 307039 (D. Az. Jan. 27, 2025).
There a consumer sued Circle K alleging it was receiving text club notifications for a Tobacco club that she never signed up for.
Circle K responded by filing summary judgment arguing that the phone number at issue was provide don a POS screen with a disclosure and a call to action explaining that by providing the phone number the customer would receive a discount on products in exchange for signing up for the text club.
The POS submission was apparently followed by a double opt in where a message was sent to the number and the person with the handset responded “yes” to confirm their intention to subscribe to the text club.
Here are the messages it sent:
Pretty clean right?
Well, not really. Watch.
The Plaintiff contended she never provided her number on the POS display to begin with. So when Circle K thereafter sent three separate requests that the consumer confirm the opt in to complete the process she turned around and sued for TCPA violations.
Circle K raised three arguments against Plaintiff’s claims.
First it argued the messages were not actually marketing because they were merely intended to confirm a transaction. The Court rejected this argument, however, and determined Circle K’s intent must be sent to the jury to decide. That is, a jury might decide Circle K was intentionally marketing to consumers using its opt in message since the opt in included the words “offer” and “special offers”:
“[H]ad merely stated “Circle K, reply yes to confirm the receipt of future text messages,” they would not run afoul of the TCPA. But that is not what the text messages said. Defendant made a discretionary choice to add additional verbiage to the text messages that went beyond confirming the recipient’s consent to receive future messages.”
Wow.
The Court also had little problem finding Circle K could not rely on somebody else’s consent to send messages to the Plaintiff. That issue was determined conclusively by the Ninth Circuit Court of Appeals some time ago and is rarely raised these days. And since Circle K could not prove it was was Plaintiff that actually provided her phone number–as opposed to some other customer that may have entered an incorrect phone number– that issue, too, is headed to the jury.
Defendant also lost on the “established business relationship” defense because it had no evidence Plaintiff had shopped at Circle K within 18 months of the texts at issue. And an established business relationship with the customer providing the number was insufficient– the relationship must be with the party receiving the messages.
So Circle K now must face potentially massive exposure in a TCPA class action because, in essence, every person on the DNC list it sent a confirmation text to that did not opt in might be a wrong number recipient– and have a claim for violation of the TCPA’s DNC rules.
Crazy. But also, seemingly the right result.
Pretty clear take aways here:
Appreciate you all.
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Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
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Find Your Next Job !
We spend a lot of time on this website discussing the dangers inherent in third-party lead generation, but not enough time is spent on the dangers of more basic processes to obtain consumer opt-in.
For instance, even the fairly reliable practice of having consumers enter phone numbers to opt in to text clubs as part of a point of sale transaction has its TCPA risks.
Consider the case of Abboud v. Circle K 2025 WL 307039 (D. Az. Jan. 27, 2025).
There a consumer sued Circle K alleging it was receiving text club notifications for a Tobacco club that she never signed up for.
Circle K responded by filing summary judgment arguing that the phone number at issue was provide don a POS screen with a disclosure and a call to action explaining that by providing the phone number the customer would receive a discount on products in exchange for signing up for the text club.
The POS submission was apparently followed by a double opt in where a message was sent to the number and the person with the handset responded “yes” to confirm their intention to subscribe to the text club.
Here are the messages it sent:
Pretty clean right?
Well, not really. Watch.
The Plaintiff contended she never provided her number on the POS display to begin with. So when Circle K thereafter sent three separate requests that the consumer confirm the opt in to complete the process she turned around and sued for TCPA violations.
Circle K raised three arguments against Plaintiff’s claims.
First it argued the messages were not actually marketing because they were merely intended to confirm a transaction. The Court rejected this argument, however, and determined Circle K’s intent must be sent to the jury to decide. That is, a jury might decide Circle K was intentionally marketing to consumers using its opt in message since the opt in included the words “offer” and “special offers”:
“[H]ad merely stated “Circle K, reply yes to confirm the receipt of future text messages,” they would not run afoul of the TCPA. But that is not what the text messages said. Defendant made a discretionary choice to add additional verbiage to the text messages that went beyond confirming the recipient’s consent to receive future messages.”
Wow.
The Court also had little problem finding Circle K could not rely on somebody else’s consent to send messages to the Plaintiff. That issue was determined conclusively by the Ninth Circuit Court of Appeals some time ago and is rarely raised these days. And since Circle K could not prove it was was Plaintiff that actually provided her phone number–as opposed to some other customer that may have entered an incorrect phone number– that issue, too, is headed to the jury.
Defendant also lost on the “established business relationship” defense because it had no evidence Plaintiff had shopped at Circle K within 18 months of the texts at issue. And an established business relationship with the customer providing the number was insufficient– the relationship must be with the party receiving the messages.
So Circle K now must face potentially massive exposure in a TCPA class action because, in essence, every person on the DNC list it sent a confirmation text to that did not opt in might be a wrong number recipient– and have a claim for violation of the TCPA’s DNC rules.
Crazy. But also, seemingly the right result.
Pretty clear take aways here:
Appreciate you all.
More Upcoming Events
Sign Up for e-NewsBulletins
You are responsible for reading, understanding, and agreeing to the National Law Review’s (NLR’s) and the National Law Forum LLC’s Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free-to-use, no-log-in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Any legal analysis, legislative updates, or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys, or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.
Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com intended to be a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.
Under certain state laws, the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.
The National Law Review – National Law Forum LLC 2070 Green Bay Rd., Suite 178, Highland Park, IL 60035 Telephone (708) 357-3317 or toll-free (877) 357-3317. If you would like to contact us via email please click here.
Copyright ©2025 National Law Forum, LLC