In Abboud v. Circle K Stores 2025 WL 2800052 (D. Az Sept. 30, 2025) the court denied certification of a DNC class involving consumers that received SMS messages from Circle K.

TCPAWorld readers will recall Circle K previously lost a critical substantive issue in the case when the court concluded its double-opt in message was too promotional to qualify as an informational message– a massive set back for the company.

However even at that point it was clear to the Czar that EBR issues could defeat class certification–a point I raised ON STAGE last year at the Association of National Advertisers conference in Arizona (more on that below.)

Did Circle K’s counsel hear me? Maybe.

Because in Abboud Circle K hammered the EBR issue and to good effect.

Backing up, the case against Circle K was one for DNC violations– not over usage of regulated technology. That means an established business relationship is a defense.

As you can imagine a lot of people go to Circle K and make purchases. If each of these purchases creates an EBR well… very hard to certify a class, even if individuals received wrong number MFAs (which was driving the suit here.)

In Abboud the Plaintiff was seeking to certify a class of anyone who received the double opt in message–which the court had previously found to be too salesy to be transactional– but who did not provide their number to Circle K.

This raises a critical issue– does an EBR exist where a consumer purchases a good but does not provide their phone number to the merchant?

In this court’s view the answer is “yes.”

Here’s the key analysis:

More fundamentally, the Court is unpersuaded by Plaintiff’s contention that the inclusion of the phrase “voluntary two-way communication” in the regulatory definition of the term EBR means that a prior purchase is insufficient to establish an EBR unless accompanied by the provision of a phone number. The term EBR is not defined in the relevant portion of the TCPA. Instead, the TCPA simply incorporates, with certain exceptions, the regulatory definition of that “term in section 64.1200 of title 47, Code of Federal Regulations, as in effect on January 1, 2003.” 47 U.S.C. § 227(a)(2)(A). See also Levitt v. Fax.com, 2007 WL 3169078, *3 n.3 (D. Md. 2007) (“When Congress codified the ‘established business relationship’ exception, it adopted by reference the FCC’s definition of the term.”).

…

At the time Congress adopted, by reference, the regulatory definition of the term EBR (i.e., January 1, 2003), the Federal Communications Commission (“FCC”) had repeatedly indicated that a prior voluntary purchase was alone sufficient to create an EBR. For example, in October 1992, the FCC adopted the “conclusion that a business relationship should be defined broadly rather than narrowly” and that “[t]he relationship may be formed with or without an exchange of consideration on the basis of an inquiry, application, purchase or transaction by the residential telephone subscriber regarding products or services offered by the telemarketer.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 F.C.C.R. 8752, 8771 (Oct. 16, 1992). In 1998, the FCC reiterated that “[y]ou have an established business relationship with a person or entity if you have made an inquiry, application, purchase, or transaction regarding products or services offered by such person or entity.” Carnett’s, Inc., 610 S.E.2d at 531-32 (citation omitted). See also Patten v. Vertical Fitness Group, LLC, 2013 WL 12069031, *8 & n.4 (S.D. Cal. 2013) (citing, with approval, the discussion in Carnett’s regarding the 1998 FCC guidance document). Moreover, in June 2003, the FCC confirmed that “if a consumer purchases a seller’s products at a retail store or from an independent dealer, such purchase would establish a business relationship with the seller, entitling the seller to call that consumer under the EBR exemption.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C.R. 14014, 14083 n.382 (July 3, 2003). This regulatory backdrop strongly supports Defendant’s position. Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 385-86 (2024) (“[E]xercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes….Such respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time. That is because the longstanding practice of the government—like any other interpretive aid—can inform a court’s determination of what the law is.”) (cleaned up); id. at 413 (“[W]hen a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it.”)

Amazing. And very helpful analysis that is applicable in numerous DNC contexts.

With the EBR issue decided substantively in Circle K’s favor it was a small step to deny certification for want of preominance:

As noted, an EBR may arise solely from a voluntary purchase from Defendant during the preceding 18-month period. In addition to proffering evidence that Plaintiff’s credit card was used to make multiple purchases from Defendant during the preceding 18-month period—which suggests Plaintiff may have formed an EBR with Defendant—Defendant also proffers evidence establishing that it has nearly 7,000 stores in America that serve more than three million customers each day. (Doc. 97 at 6, citing Doc. 97-1.) This evidence suggests that at least a significant portion of the proposed Subclass members which, as noted, is likely composed of tens of thousands of individuals in the United States—made a purchase from Defendant during the relevant period and thus also formed an EBR with Defendant. 11 However, determining whether each proposed Subclass member in fact had an EBR with Defendant will require an individualized inquiry that cannot be resolved “in one stroke.” Wal Mart Stores, Inc., 564 U.S. at 350

Yep, sounds right.

So does this make large retail chains immune from TCPA DNC class actions?

I mean, kind of.

Presumably the Plaintiff could have defined the class to exclude individuals who had not made purchases– and there is probably a way to get there, but my goodness that is a long way to go and I can’t imagine courts would allow the invasive discovery needed to identify such a class (and it would probably end up being pretty small.)

I suspect Plaintiff will appeal the core substantive issue of whether an EBR is formed without a phone number being provided. THAT will be a critical one to watch for retailers across the nation.