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The Eleventh Circuit Interprets Prior Express Consent Under The TCPA (Telephone Consumer Protection Act)

In Osorio v. State Farm Bank, F.S.B., No. 13-10951, 2014 U.S. App. LEXIS 5709 (11th Cir. Mar. 28, 2014), the U.S. Court of Appeals for the Eleventh Circuit has provided some guidance on the parameters of “prior express consent” under the Telephone Consumer Protection Act (“TCPA”).  In particular, the court held: (1) consent can be given on behalf of another person if an agency relationship exists and (2) a party may orally revoke consent.

In Osorio, Clara Betancourt provided the defendant State Farm Bank with plaintiff Fredy Osorio’s cell number by listing it on a credit card application.  Betancourt and Osorio were not married, but were the parents of an adult son and shared a home and a cell-phone plan.  Later, Betancourt fell behind in her credit card payments.  In an effort to collect the debt, defendant began calling Osorio’s cell number using an auto-dialer.

The district court granted summary judgment in favor of the defendant on the ground that Osorio and Betancourt had “common authority” over the cell phone.  The Eleventh Circuit rejected this approach, holding that an agency relationship must exist for one person to give prior express consent on behalf of another.  The Eleventh Circuit then reversed summary judgment on the ground that disputed issues of fact existed about whether an agency relationship existed between Osorio and Betancourt.

The court also held that, under the TCPA, a party may revoke prior express consent, either orally or in writing.  Since the facts were in dispute, this also prevented summary judgment.

This is one of the few Circuit Court of Appeal decisions interpreting the TCPA.  It provides additional guidance on the increasingly litigated issues of agency and revocation of consent under the TCPA.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Shannon Z. Petersen, Business Trial Legal Specialist, Sheppard Mullin
Partner

Shannon Z. Petersen is a partner in the Business Trial Practice Group in the firm’s Del Mar office and is co-chair of the firm’s consumer class action defense team and the firm’s TCPA class action defense team.

Areas of Practice

Dr. Petersen has substantial trial experience as a business litigator, including consumer class action defense. He has successfully represented clients in claims involving the federal Telephone Consumer Protection Act (TCPA), the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Acting (FCRA), the Truth in Lending...

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Mercedes A. Cook, Business Attorney, Sheppard Mullin Law Firm
Associate

Mercedes Cook is an associate in the Business Trials Practice Group in the firm's Los Angeles office.

Areas of Practice

Ms. Cook represents clients in a variety of business litigation matters. Her experience includes disputes involving claims of fraud, unfair competition, false advertising, breach of fiduciary duty, breach of contract and California’s Consumer Legal Remedies Act (CLRA).

Ms. Cook also has experience in both the regulatory and litigation aspects of environmental law. Specifically, Ms. Cook has experience with RCRA permitting requirements and the federal and state rules and regulations governing hazardous waste with regard to air quality. Her work also includes preparation for administrative hearings involving the Department of Toxic Substances Control and litigation involving defending against a petition for an order for abatement before the South Coast Air Quality Management District. Ms. Cook was part of a team of Sheppard Mullin attorneys that successfully obtained a TRO, which prevented the immediate shutdown of a battery recycling facility.

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