Abboud v. Circle K Stores Incorporated
2:23-cv-01683
| D. Ariz. | Jan 27, 2025Background
- Monica Abboud, the plaintiff, alleges Circle K Stores Inc. violated the TCPA by sending her text messages after she registered her number on the National Do Not Call Registry (DNC Registry).
- Plaintiff claims she never gave consent, never entered her number at a Circle K, does not use tobacco, and has never purchased tobacco from Circle K.
- Defendant operates a tobacco discount messaging program, requiring phone numbers to be submitted at an in-store system. Entering a number triggers up to three promotional/opt-in text messages.
- Abboud received four text messages after her number was entered at a Texas store (by an unidentified person), encouraging sign-up for offers.
- Circle K moved for summary judgment, arguing the texts were not solicitations and, alternatively, that consent/established business relationship exceptions applied.
- The court denied summary judgment, finding genuine disputes of material fact on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether texts were “telephone solicitations” under TCPA | Messages encouraged future purchases; references to “special offers” were solicitations | Texts were merely opt-in confirmations, not solicitations | Reasonable jury could find messages were solicitations; summary judgment denied |
| Whether Plaintiff consented to receive messages | Plaintiff never provided consent or authorized anyone to do so | Consent obtained when someone entered her number in-store; her number was voluntarily provided | Consent must come from the called party; no evidence Plaintiff gave consent |
| Whether there was an established business relationship | Abboud never transacted, inquired, or communicated with Circle K; no relationship | A purchase was made using her number; implies a business relationship | Relationship requires two-way communication by subscriber; Abboud did not have such a relationship |
| Effect of wrong number entry (third party entered phone number) | Consent/business relationship exceptions require actual subscriber’s participation | Exception should apply if number is provided in the course of a transaction, even if not by subscriber | Statute/regulations require consent/relationship of person receiving the call, not just the number |
Key Cases Cited
- Chesbro v. Best Buy Stores, L.P., 705 F.3d 913 (9th Cir. 2012) (holds that dual-purpose calls/messages with both informational and marketing components can be solicitations under TCPA)
- N. L. by Lemos v. Credit One Bank, N.A., 960 F.3d 1164 (9th Cir. 2020) (consent under the TCPA must be given by the current subscriber/recipient, not an unrelated third party)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (consent is an affirmative defense under the TCPA, defendant bears burden)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden framework)