Overview
Given the Telephone Consumer Protection Act's (TCPA) draconian, uncapped aggregated statutory damages, which can range between $500 and $1,500 per text message or telephone call depending on the type of claim, it is no surprise that the statute remains, in the words of a recent-former Federal Communications Commission Chairman, "the poster child for lawsuit abuse, with the number of TCPA cases filed each year skyrocketing." One category of particularly abusive, recent TCPA plaintiff is the so-called "opt-out evader." Opt-out evaders are individuals who purposefully reply to text messages with wordy and sometimes unclear responses intended to fool or confuse the back-end algorithms that accept and process such do-not-text requests. For example, any reasonable consumer with a cell phone knows that, when he or she responds to a text message with a simple "stop" reply, no more text messages will (or should) be sent. Yet rather than take advantage of such customary and well-known method of asking for text messages to end, opt-out evaders attempt to game the system, responding with phrases such as "I've changed my mind and don't want to receive these anymore," "I don't want these messages anymore. This is your last warning!," "I would appreciate it if you don't text me anymore," "This is a formal revocation of consent for all marketing communications," "Please cease," etc. What's worse is that many of these types of responses come after clear direction from telemarketers in their outbound messaging that all a consumer needs to do is "Text STOP to stop" (or some other similar common keyword) in order for text messages to end. Frankly, it's amazing how many Americans become master wordsmiths when statutory damages are on the line.
Often, opt-out evader complaints allege in broad and summary fashion that the plaintiffs requested that the complained-of text messages stop but, nonetheless, the text messages continued. These artfully-pled complaints, however, do not actually contain the wording of the stop requests themselves. It can be difficult for a defendant in a TCPA case to educate the court on the actual and undisputed underlying facts early on in the litigation. And, by the procedural point in a case where such evidence can be presented, most defendants have long-since settled due to the bankrupting damages exposure and one-sided litigation expenses.
That's why it was refreshing to read a recent decision from the US District Court for the Central District of California in a putative opt-out evader class action. More specifically, in Juarez v. BJ Acquisition LLC, the plaintiff pled that he "‘requested to opt-out of Defendant's text messages by replying with a stop instruction'" but that the messages continued. No. 2:26-cv-02944-MCS-AS, Order Re: Motion to Dismiss (ECF 15), at 2 (C.D. Cal. May 20, 2026). The defendant moved to dismiss and attached to its motion a declaration, showing that, in fact, the plaintiff responded to the defendant with a message stating, "‘Don't text me anymore,' even though Defendant invited Plaintiff to text the keyword ‘STOP' to signal his revocation of consent to receive further messages." Id. The defendant argued that the plaintiff's TCPA do-not-call claim failed because, by texting back an "idiosyncratic sentence" instead of following the defendant's clear opt-out instruction, the plaintiff did not reasonably communicate his revocation of consent. Id.
Although the court found that the defendant's position had "ample and persuasive support" and noted that it "shares Defendant's concern that ‘Plaintiff should not benefit from his intentional decision . . . to omit the very message he sent to opt out,'" the court denied the defendant's motion to dismiss. The court held that it could not take judicial notice of the plaintiff's actual opt-out message at the pleadings stage. That outcome is not particularly unusual. What came next, however, was: the court invited the defendant either to seek early summary judgment or to file a Rule 11 motion for sanctions:
Defendant should chart its own course for seeking disposal of the case, whether by an early Rule 56 motion following the local rules governing such motions or by a Rule 11 motion based on Plaintiff's allegedly inorganic pattern of TCPA litigation or decision not to plead the substance of his opt-out message to evade a Rule 12 dismissal.
Id. at 3 (emphasis added).
So, there we go—companies defending TCPA opt-out evader cases have a judicially blessed option to use in their defense. We'll continue to keep you updated on the latest notable developments in the TCPA space.
