June 21, 2021

Volume XI, Number 172

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June 18, 2021

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Second Circuit Doubles Down On Decision Prohibiting Unilateral Revocation of Consent From Bilateral Contract

We reported in June on a Second Circuit decision holding that a consumer cannot unilaterally revoke consent that she provided in a bilateral contract. “It is black letter law,” the court explained, “that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty,” and that “consent to another’s actions can ‘become irrevocable’ when it is provided in a legally binding agreement.” As a result, the TCPA “does not permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.”

The Plaintiff filed a motion for panel rehearing or, in the alternative, rehearing en banc. On October 20, 2017, the Second Circuit denied that motion in a three-sentence Order that says simply that “the petition is denied.” Its earlier decision therefore continues to weigh heavily in favor of including consent provisions in customer-facing contracts.

© 2021 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume VII, Number 303
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About this Author

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

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...

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