iWhat a day for contractual consent provisions! Just hours after the Czar wrote about a positive development around “Good Reyes” (Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d Cir. 2017), as amended (Aug. 21, 2017)) came yet another positive development – this time within the Eleventh Circuit – in which the court granted summary judgment in favor of the Defendant on the basis the Plaintiff could not unilaterally revoke the consent she provided in a binding contract.
In Few v. Receivables Performance Mgmt., No. 1:17-CV-2038-KOB, 2018 U.S. Dist. LEXIS 134324 (N.D. Ala. Aug. 9, 2018), Plaintiff agreed in her contact with satellite TV provider Dish that Dish, and any other debt collector acting on its behalf, could call her on her cell phone “through an automated or predictive dialing system or prerecorded messaging system.” Plaintiff subsequently sued the debt collector retained by Dish for violating the TCPA by calling her using an ATDS after she had revoked consent. The court granted summary judgment in favor of the debt collector holding that Plaintiff did not have the right to unilaterally revoke the consent she had provided in her contract with Dish.
The court started with the premise – based upon the Eleventh Circuit’s opinion in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) – that it “should evaluate revocation of consent,” under the TCPA “by considering the common law concept of consent.” According to the Eleventh Circuit in Osorio, the common law allows revocation of consent, but only “in the absence of any contractual restriction to the contrary.” Few, supra (citing to Osorio, 746 F.3d at 1255). Keying in on this important aspect of Osorio, the court found that – while the Eleventh Circuit had correctly recognized that the right to revoke may be restricted by contract – it had not “spoken further” on exactly “how a contractual agreement bears on revocation of consent,” under the TCPA. Id.
Filling in the gap for the court was the Second Circuit’s “persuasively reasoned” holding in Good Reyes. The court applied Good Reyes and found: “Ms. Few gave prior express consent to Receivables to make the calls and, because she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was able unable to unilaterally revoke consent. Receivable’s phone calls to Ms. Few, therefore, did not violate the TCPA.” Id. at *6. This is, after all, “black letter law”. Id.
So there it is. A good week on the Good Reyes front. This is now the second out-of-circuit decision to apply Good Reyes (the first being the Barton case out of the Sixth Circuit). What makes Few particularly powerful is its recognition of binding Eleventh Circuit precedent that a consumer’s right to revoke consent may be “restricted by contract”. And while the Eleventh Circuit did not elaborate much further in Osorio, the court in Few aptly found that Good Reyes should dictate the outcome over whether a consumer may revoke consent provided in a bargained-for exchange under bedrock principals of contract law.
