Repeat litigator Nathan Barton just lost a case against Walmart, and it is noteworthy in a couple of respects.

First, Barton claimed the following messages constituted telephone solicitations:

• “Walmart: Part of your order is ready for curbside pickup until Sat, Sep 03. Check
  in before you go: https://w-mt.co/g/3908R1 Reply HELP for info; STOP to opt out.”
• “As requested, we’ve canceled your Walmart or-der. View updated order details:
  https://w-mt.co/g/391Zfv Reply HELP for info; STOP to opt out.”
• “Sorry, some items in your Walmart order weren’t available. Review your
  order: https://w-mt.co/g/4GXMnv Reply HELP for help; STOP to opt out.”
  • An October 29, 2022 message that read: “Your Walmart order has substitutions. Anything you don’t want? Please let us know soon: https://w-mt.co/g/4KyLN4 Reply HELP for info; STOP to opt out.”

Barton claimed these messages were telephone solicitations and that Walmart sending these messages without consent violated the TCPA’s DNC provisions as a result.

The Court disagreed.

Approaching the issue with “common sense” the court concluded none of the messages were intended to encourage the purchase of any good or service and they were simply transactional/informational messages sent to inform the consumer about an order status.

Since the messages weren’t solicitations the TCPA DNC claim failed and the alleged lack of consent didn’t matter.

Nonetheless the court paused to recognize that Walmart’s decision to treat “stop” requests as ORDER SPECIFIC–i.e. they would continue texting the consumer on future transactions even after a stop was sent–was reasonable and enforceable in context. The Court found Walmart’s decision to advice the consumer after each message that the stop was only sufficient for that order was permissible and informed Barton of the scope of the stop.

This last piece is REALLY interesting in light of the FCC’s new TCPA guidance on the BROAD scope of consent revocation.

Under the FCC’s new ruling the STOP would operate to bar Walmart from ever texting again for any purpose either informatonal or marketing!! But this court found “common sense” tells us the stop only prevented further messages on THAT SINGLE ORDER.

Holy smokes what a disconnect.

The error of the FCC’s logic is really clear from tis fact pattern. Can you imagine a company like Walmart (or Uber, or Doordash) never being able to text again because a consumer says “stop” on time? That could be business ending–and terrible for consumers.

Regardless this is a great win for Walmart and another loss for Mr. Barton.

Somehow I think we’ll hear from him again, however.