February 7, 2023

Volume XIII, Number 38


February 06, 2023

Subscribe to Latest Legal News and Analysis

Court Enters Summary Judgment Against Plaintiff, Finds No Triable Issues Regarding Revocation of Consent

The Eastern District of California recently entered summary judgment against a plaintiff because it found that the plaintiff failed to revoke his consent to receive auto-dialed calls on his cell phone.  Wright v. USAA Savings Bank, No. 19-0591, 2020 WL 2615441, at *1-5 (E.D. Cal. May 22, 2020).  The case illustrates that defendants in the Ninth Circuit can still prevail on consent and other issues even though they may face an uphill battle on ATDS issues.

The plaintiff in Wright applied for a credit card and listed his cell phone number on the application.  Id. at *1. He developed terminal cancer in 2018 and failed to make payments on the credit card.  Id. Between July 2018 and January 2019, defendants’ agent called Mr. Wright’s cellphone number using the Aspect Dialing System to collect the credit card debt. Id. Evidence established that the Aspect Dialing System is a predictive dialer that does not have and is not capable of using a random or sequential number generator to dial numbers. Id.

Mr. Wright hired a lawyer, who then sent a revocation of consent letter to defendants’ headquarters in Las Vegas. Id. However, defendants used a Texas address on all of their correspondence with Mr. Wright. Id. They also used the Texas address: (1) as the address for making payments; (2) in each delinquent payment notification; and (3) on the “Contact Us” page on their website.

Mr. Wright eventually filed suit but died a short time later. Id. at *2. The court granted his wife authority to substitute as plaintiff in the action. Id. Mr. Wright’s complaint asserted a TCPA claim as well as other statutory violations. Id. The parties filed cross-motions for summary judgment. Id.

First, defendants argued that the Aspect Dialing System at issue was not an ATDS. Id. at *3.  Defendants asserted that Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), should not control the outcome of the ATDS dispute because the D.C. Circuit’s ACC International decision invalidated the FCC’s 2003, 2012 and 2015 Orders but not the FCC’s 1992 and 1995 Orders, “which conclude that to be an ATDS the system must itself generate numbers ‘in random or sequential fashion.’”  Id. (quoting In Re Rules & Regulations Implementing the TCPA of 1991, 7 F.C.C. Rcd. 8752, 8769 ¶ 47 (1992); citing In Re Rules and Regulations Implementing the TCPA of 1991, 10 FCC Rcd. 12391, ¶ 19 (1995)). The court rejected the argument, finding that it was “bound by Marks. Id. The court also noted that the subsequent decision in Duguid v. Facebook, Inc., 926 F.3d 1146 (9th Cir 2019), confirmed that Marks is the law in the Ninth Circuit.

Second, the parties disputed whether Mr. Wright effectively revoked his consent. Id. Under the facts presented, the court held that “no reasonable trier of fact could find that plaintiff used reasonable means to revoke consent.”  Id. (citing ACA Int’l v. FCC, 885 F.3d 687, 709 (D.C. Cir. 2018) (“In assessing whether a revocation request meets the ‘reasonable means’ standard,”’ courts consider “the totality of the facts and circumstances.”)). The court observed that “[d]efendants never made the Las Vegas address known to customers, nor did they communicate to its customers that the Las Vegas address was an appropriate destination for customers’ account-related inquiries.” Id. Furthermore, Mr. Wright was not even able to establish that defendants received the revocation letter. Id. at *5.  The only evidence of receipt was a UPS confirmation notice stating that the letter was “delivered to the front desk, reception area, or mail room . . . in LAS VEGAS NV 89169.”  Id.  Defendants presented evidence that they did not own or control the front desk, and that defendants did not sign for, and could not control the receipt of, correspondence at the Las Vegas address. Id. Thus, the court granted defendants’ motion for summary judgment because the plaintiff did not effectively revoke consent to receive the calls at issue. Id.

In light of the unfavorable Marks ruling, companies facing TCPA claims in the Ninth Circuit should consider raising other fact-based defenses that do not relate to the definition of an ATDS.  As the Wright decision highlights, an examination of the facts surrounding a plaintiff’s supposed revocation of consent could lead to a successful dispositive motion.

© 2023 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 162

About this Author

Matthew Morrissey, Drinker Biddle Law Firm, Litigation Attorney

Matthew M. Morrissey litigates claims in federal and state courts throughout the country. Matt represents clients in commercial disputes, class actions, internal investigations and financial services litigation. He is also frequently called upon to represent clients in regulatory and enforcement actions involving federal, state and municipal authorities.

Matt is a contributor to the firm's SEC Law Perspectives Blog, which provides reports, discussions, and...

Michael Daly, Drinker Biddle Law Firm, Philadelphia, Litigation and Retail Attorney

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in state and federal courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. He is also a founder of the firm’s TCPA Team; the senior editor of the TCPA Blog, which provides important information and insight...