How to Look after yourself because the judiciary isn't looking out for you

Imagine you are checking out at a sale-resale store, and the clerk tells you if you want to sell the movies you are purchasing back later, they need your phone number.

You tell the clerk you don't want solicitations, but the screen says "Enter your phone # to receive coupons and sales notices. Message and data rates may apply". At the same time you are telling the clerk you don't want solicitations.

What wins? In the ninth circuit you might look at Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, (9th Cir. 2017) which has several holdings at play in our hypothetical situation.

• "we hold that the scope of a consumer's consent depends on the transactional context in which it is given"

• "The consumer may revoke his or her consent but in that case must clearly express that he or she does not want to receive the messages or calls."

Or you might look at 47 CFR § 64.1200(f)(5)(i) The subscriber's seller-specific do-not-call request, as set forth in paragraph (d)(3) of this section, terminates an established business relationship for purposes of telemarketing and telephone solicitation even if the subscriber continues to do business with the seller.

This situation, however, isn't hypothetical. in lawsuit Thompson v. Vintage Stock, 2025 WL 385681 (E.D. Mo Feb. 3, 2025), Ms. Thompson was shopping at Vintage Stock, a store that sells movies, games and CDs, and buys them back. During her first visit, while checking out she asked an employee about selling them back, and the employee told Ms. Thompson that to sell them back, Vintage Stock needed her phone numbers so they could pull up Sheila's account.

Ms. Thompson told the employee she didn't want advertisements but entered her phone number into Vintage Stock’s VeriFone system, which read: “Enter your phone # to receive coupons and sales notices. Message and data rates may apply,”

Years later Vintage Stock started texting Ms. Thompson, and Ms. Thompson sued under the Telephone Consumer Protection Act for unsolicited phone calls. And spoiler alert, she lost. Now, I could see her losing on a technicality, if the court found that Ms. Thompson revoked her consent verbally but seconds later gave consent by typing in her phone number, then not again verbally revoking her consent, but this court didn't do that.

Instead it demonstrated the lengths a court will go to rule against a consumer when required. First, it made a find of fact that telemarketers gunna telemarket:

the Court finds as a fact that Vintage Stock’s corporate designee “assume[d]” that, if a customer entered her phone number on the VeriFone system but told the employee that she does not want to get text messaging, the customer would receive text messages. Further, the corporate designee “speculat[ed]” that “you could make sure” that text messages are not received if “[y]ou could get ahold of us or something, but” in that circumstance “you’re counting on an employee to try to figure out to call somebody,” which “gets difficult . . . if the store is busy and stuff, who knows.”

and then went on an amazing intellectually dishonest rampage:

The fact that she told an employee that she did not want advertisements did not negate that she expressly requested coupons and sales notices. “[A]dvertisement” ordinarily means “a public notice,” Advertisement, Merriam-Webster’s Dictionary, at 19 (11th ed. 2020), and would encompass sales notices. Even so, expressing a lack of desire to receive advertisements does not counter expressly requesting coupons and sales notices to be sent to you. Moreover, even if Sheila did tell the employee that Vintage Stock should not send her advertisements, Sheila has not pointed to any evidence that the employee personally could, or knew how to, prevent Sheila from receiving text messages or negate Sheila’s entry of her phone number into the VeriFone system (or, for that matter, negate the notice Sheila received when she did enter her number). Moreover, Sheila fails to produce any evidence that the employee had the authority or ability to override the electronic system.

Now Missouri is not in the ninth circuit (Missouri is in the 8th), so I don't know what appellant caselaw on revocation of consent is binding there is, although a quick search found “Courts have divided about whether one may orally revoke consent under the TCPA. But, in an unpublished opinion, the Eighth Circuit has indicated that it's possible, and other circuits have so held.” Roberts v. Pennymac Loan Servs., LLC, No. 4:16-cv-700-DPM, (E.D. Ark. Jan. 11, 2017).

And it seems the sequence of events (revoke - then consent, or consent - then revoke) could be an issue, but it is mind blowing that a court would put a duty on a consumer to figure out if an employee personally could, or knew how to, prevent Sheila from receiving text messages or negate Sheila’s entry of her phone number into the VeriFone system.

Going back to Van Patten, it went back to the FCC:

The 2015 Order stressed that consumers "have a right to revoke consent, using any reasonable method including orally or in writing." Id. at 7996 ¶ 64. The FCC also specified ways that a consumer may revoke a call: "by way of a consumer-initiated call, directly in response to a call initiated or made by a caller, or at an in-store bill payment location, among other possibilities." Id. The FCC emphasized that the TCPA does not permit the calling party to designate the exclusive means of revocation, and instead, the called party must "clearly express his or her desire not to receive further calls."

This Vintage Stock holding on employees is dumb and will be used by future telemarketers against consumers by saying their employees don't know how to make the calls stop, so the telemarketer isn't responsible for not stopping them. It will also be used by future telemarketers where they make sure anyone knowledgeable in how to make calls stop is inaccessible to the public.

Can you imaging a similar requirement in any other context? You find out meat you purchased is contaminated with e-choli and you tell an employee in the grocery store. Imagine they keep selling the contaminated meat, someone dies, and it goes to court in part because you previously warned the store via an employee that they were selling contaminated meat.

Can you imagine the court letting the store off the hook of your warning because that employee didn't know what to do with your information, so the store kept selling? In what other areas of life do we put consumers in charge of knowing what employees know? And so what if the employee didn't know how to make the calls stop? Is it the a consumer's responsibility to find an employee who does know, or, like in the case of the spoiled meat, is it an employer's responsibility to train their employees to come ask a manager if they themselves are notified of company responsibility they themselves are not trained to address?

Dkt 74 - Thompson v Vintage Stock.pdf

Download PDF • 241KB

The result is so dumb even Eric Troutman is shaking his head:

truthfully Vintage Stock could have lost this case easily. Indeed, 8 out of 10 times these folks lose this motion. There are a bunch of interesting issues here and it is, frankly, stunning to me that Vintage Stock is walking away unscathed.

All that aside, what could Ms. Thompson have done to make her case stronger? After entering her phone number at the register to get the return privilege's she wanted, she could have spoken with a manager to make her do-not-call request. That probably would not have changed the outcome at the district court, but will an appeals court also say that if the manager of a business doesn't know how to comply with its legal obligations, the business is exempted from its legal obligations? Seems less likely.

Personally I don't like he-said she-said situations, so something in writing is always preferred but I get that we can't go home and write emails every time in situations like this comes along. The real solution is to find poster boy cases and appeal them to tie the hands of bad judges. As much as I feel for Ms. Thompson, I hope this particular case is not appealed because of the consent - revoke consent issue at the register could open the door to the appeals court finding for Vintage Stock. I much prefer cases where the facts demand courts follow the letter of the law.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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