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Inadmissible Hearsay Will Not Create Genuine Issue of Fact Regarding Whether Plaintiff Revoked Consent

The Southern District of Texas recently entered summary judgment in favor of a TCPA defendant, holding that the plaintiff had failed to present competent proof that she had orally revoked her consent to be called by a collection agency. Young v. Medicredit Inc., No. 17-3701, 2019 WL 1923457, at *4 (S.D. Tex. Apr. 26, 2019).

The plaintiff in Young alleged that the defendant had violated the TCPA by repeatedly calling her about overdue medical debts. Id. at *1. The defendant moved for summary judgment, relying in large part on the fact that the plaintiff had voluntarily given the medical facility her cellphone number and had signed a treatment form in which she consented to being contacted by phone, including through “‘pre-recorded/artificial voice messages and/or use of an automatic dialing system.’” Id. The plaintiff conceded that she had initially consented to the defendant’s calls, but argued that she had subsequently revoked that consent. Id. at *3. The question then became whether the plaintiff had created a genuine issue of fact regarding her alleged revocation.

The court found that she had not. Although the plaintiff cited her own testimony—during which she claimed that she asked the defendant to stop calling her—the court noted that the plaintiff could not remember when that happened and could not present any call recordings or other evidence to corroborate her claim. Id. at *3. And although the plaintiff’s mother testified that she had overheard the plaintiff tell the defendant to stop calling her, the plaintiff herself testified that her mother had not answered the call, had not been on the line listening to the call, and had later asked her daughter who had been on the phone. Id. The court therefore found that the mother lacked personal knowledge about the identity of the caller, and that her testimony was inadmissible hearsay. Id. In contrast, the defendant presented recordings of its only two calls with the plaintiff. Id. The court found that nothing in the recordings could be construed as the plaintiff revoking her prior consent. Id.

In granting the defendant summary judgment, the court held that the plaintiff had “failed to present evidence that raise[d] a genuine, triable issue regarding an alleged oral revocation of that consent.” Id. As shown here, plaintiffs must present more than unsubstantiated allegations of consent revocation to defeat summary judgment—competent proof is required.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume IX, Number 128


About this Author

Natalie DeLave Litigation Attorney

Natalie K. DeLave assists clients with various aspects of litigation, including legal research and the drafting of motions and other memoranda.

While in law school, Natalie interned for the Honorable Manish S. Shah of the U.S. District Court for the Northern District of Illinois and for the Honorable Robert L. Miller, Jr. of the U.S. District Court for the Northern District of Indiana. She was a summer associate at Drinker Biddle in 2017.

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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 about the Telephone Consumer Protection Act; and a senior member of the firm's Class Actions Team and interdisciplinary Retail Industry Team.

Committed to civil rights and civic engagement, Michael has spearheaded public interest matters meant to prevent racial discrimination, protect the rights of the disabled and incarcerated, prohibit the use of unverifiable voting systems, and preclude the misuse of our laws and abuse of our civil justice system. One of his most recent public interest matters resulted in a landmark settlement that put an end to decades of discrimination by administrative agencies that had refused to make important information about public benefits programs available in alternative formats that were accessible to the blind and visually impaired. As a result of the settlement, thousands of class members have already requested and received documents in accessible alternative formats.