Monthly TCPA Digest: TCPA Class Action Update – Trending: Courts Holding Plaintiffs to Their Word
In mid-2017, the Second Circuit concluded consent to receive calls is unilaterally irrevocable so long as it is a contract term. Whereas prior decisions considered “a narrow question: whether the [Telephone Consumer Protection Act] allows a consumer who has freely and unilaterally given his or her informed consent [to] later revoke that consent,” in Reyes v. Lincoln Auto. Fin. Servs. the Second Circuit addressed “a different question[:] whether the TCPA also permits a consumer to unilaterally revoke his or her consent to be contacted by telephone when that consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract.” Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017) (emphasis added). No, answered the Second Circuit. Relying on common law, “consent to another’s actions can ‘become irrevocable’ when it is provided in a legally binding agreement” and on that basis, it affirmed the trial court’s judgment. Id. at 57. Since then, a number of courts across the country (and notably in the Eleventh Circuit) have sided with Reyes in several defendant-friendly summary judgment rulings.
The trend began picking up earlier this year when the Northern District of Ohio, relying on Reyes, rejected the plaintiff’s oral revocation theory and granted summary judgment for the defendant in Barton v. Credit One Fin., No. 16-cv-2652, 2018 U.S. Dist. LEXIS 72245 (N.D. Ohio, Apr. 27, 2018). Though the plaintiff may have orally asked the defendant to stop calling, his cardholder agreement provided for specific revocation procedures, which the plaintiff could not unilaterally alter, and with which the plaintiff did not comply. Id. at *8-*9.
In line with Reyes, the District of Connecticut also granted summary judgment for the defendant in Harris v. Navient Sols. The plaintiff, who defaulted on student loans, signed promissory notes in which she provided her telephone number and which contained language confirming the notes could only be modified in writing and with the assent of both parties. Harris v. Navient Sols., LLC, No. 3:15-cv-564, 2018 U.S. Dist. LEXIS 140317, *1-*2 (D. Conn. Aug. 7, 2018). The notes also provided for calls using an automatic telephone dialing system. Id. at *2. Notably, the court pointed to recent FCC statements in ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), in which the FCC conceded that a 2015 ruling touching on revocation of consent “did not address whether contracting parties can select a particular revocation procedure by mutual agreement” and “[h]ere, the promissory notes provide a revocation procedure: modification of the contract in writing,” which did not happen. Id. at n.5 (internal quotations omitted).
While Harris was somewhat expected given that the district court was situated in the Second Circuit, the issue heated up as courts in the Eleventh Circuit issued rulings in Few v. Receivables Performance Mgmt., No. 1:17-CV-2038, 2018 U.S. Dist. LEXIS 134324 (D. Ala. Aug. 9, 2018) and Medley v. Dish Network, LLC, No. 8:16-cv-2534, 2018 U.S. Dist. LEXIS 144895 (M.D. Fla. Aug. 27, 2018). As in Harris, the plaintiff in Few consented to receipt of calls through automated systems and argued that she continued to receive calls despite revoking consent. Few, 2018 U.S. Dist. LEXIS 134324 at *3-*4. Relying on Eleventh Circuit precedent, the court noted that “common law concepts allow the unilateral revocation of consent, but only in the absence of any contractual restriction to the contrary.” Id. at *5 (internal quotations omitted; emphasis added). Because the plaintiff consented “as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent.” Id. at *6.
Later that same month, the Middle District of Florida sided with Reyes in Medley, where the plaintiff sued after signing an agreement authorizing Dish “to contact [her] through an automated or predictive dialing system or prerecorded messaging . . . .” Medley, 2018 U.S. Dist. LEXIS 144895 at *3. The Middle District of Florida pointed out that the Eleventh Circuit has yet to rule on “whether consent may be unilaterally revoked when it is given as part of a bargained-for contract” before concluding that under “black-letter contract law  one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed.” Id. at *28-*31 (internal quotations omitted). Notably, Medley also distinguished other recent decisions (including one from the Middle District of Florida) that have found the contrary; the plaintiff in Patterson v. Ally Financial, Inc., No. 3:16-cv-1592, 2018 U.S. Dist. LEXIS 15203 (M.D. Fla. Jan. 31, 2018) did not provide his telephone number “as part of the ultimate contract,” while Ammons v. Ally Financial, Inc., No. 3:17-cv-00505, 2018 U.S. Dist. LEXIS 108588 (M.D. Tenn. June 27, 2018) relied on an overbroad reading of Osorio, concluded Medley. Id. at *33-*36.
The trend is clear – regardless of the jurisdiction, post Reyes an increasing number of courts are willing to hold plaintiffs to their word. Given the expense of defending a TCPA class action and its potential exposure, the safest course for creditors and other businesses receiving a do-not-call request is to halt communication. Enterprising professional plaintiffs, however, may find creative ways to “revoke” consent (such as with a fax in Medley) that may go unnoticed. The trend in decisions like Reyes, Barton, Harris, Few, and Medley, however, provides peace of mind allowing businesses to rely on prior agreements memorializing consent.