Attorney’s “Gotcha” Strategy Rejected in TCPA Revocation Case
The TCPA allows consumers to revoke consent “through any reasonable means.” A recent case out of the Eastern District of California provides new guidance on what is not considered reasonable.
In Wright v. USAA Sav. Bank, No. 2:19-cv-00591 WBD CKD, 2020 U.S. Dist. LEXIS 90576 (E.D. Ca. May 21, 2020), Plaintiff attempted to revoke consent to be called regarding an outstanding credit card debt by sending a letter to USAA Savings Bank’s (“USAA SB”) headquarters in Las Vegas. However, the address was never provided by USAA for account-servicing purposes, or as an address to which account-related correspondence may be sent. After USAA Federal Savings Bank (“USAA FSB”), the servicer of the account, continued calling, Plaintiff filed suit alleging violation of the Telephone Consumer Protection Act (“TCPA”).
According to the FCC, the TCPA allows consumers to revoke consent “through any reasonable means,” “including orally or in writing.” 2015 FCC Order, pp. 55,64. In determining the reasonableness of revocation, courts will generally examine the totality of the circumstances surrounding a request to no longer receive calls.
The Court in Wright, looking to the totality of the circumstances, held “no reasonable trier of fact could find that plaintiff used reasonable means to revoke consent.” The Court reasoned that Defendants USAA SB and USAA FSB never made the Las Vegas address known to customers - every account statement and payment reminder Plaintiff received over the course of 18 years was from, and contained, a San Antonio address, as well as a link to USAA’s website that provided the San Antonio address.
Moreover, although the USPS confirmation notice associated with the revocation letter verified that the letter was delivered to the front desk at the Las Vegas address, there was no dispute that USAA SB did not own or control the front desk, and Defendants contended they had no record of ever receiving the letter. Therefore, the Court found Plaintiff could not establish that Defendants received the revocation letter.
Perhaps the most important consideration was the Court’s finding that Plaintiff’s counsel’s intention in sending the revocation letter was not based on a genuine belief that Defendants would process the correspondence, but rather based on an attempt to create a record for litigation. Plaintiff’s counsel has filed over 90 TCPA cases, including one against USAA SB in which counsel was put on notice that the attempted method of revocation in question presented issues. Accordingly, the Court concluded that counsel’s choice of address was a legal strategy and no reasonable person, “after receiving hundreds of notices pointing to San Antonio,” could have expected to effectively revoke consent by sending correspondence to the Las Vegas address. The Court, therefore, granted Defendants’ motion for summary judgment.
There are a few important takeaways from the Wright ruling. First, consumers cannot send written revocation requests willy-nilly to any address associated with a financial institution. Indeed, many financial institutions have multiple lines of businesses across diverse geographies with numerous physical locations and addresses. As such, to avoid confusion and shut down any openings for such “creative” attempts to revoke, it is important for financial institutions to designate specific addresses to receive written communications regarding specific types of accounts. Second, to avoid the trap that the Plaintiff’s counsel set in the Wright case, it is important for financial institutions to clearly communicate the appropriate addresses and other contact information (including telephone numbers and/or e-mail addresses) for account-related communications early, often, and consistently. Lastly, the Wright case shows that courts will not be particularly receptive to these sorts of manufactured claims, particularly where the consumer was provided with clear instructions on the appropriate channels to which they may direct account-related communications.