Happy holidays to all the readers of the TCPA Blog! Below is a link to an article written by Michael Daly, Meredith Slawe, and John Yi on some recent decisions addressing contrived revocation of consent claims in text message based lawsuits.
Yesterday the District of New Jersey issued an important decision that reinforces—as we have explained before both here and elsewhere—that a plaintiff’s alleged revocation of consent must be reasonable rather than fanciful. Viggiano v. Kohl’s Department Stores, Inc., No. 17-0243 (D.N.J. Nov. 27, 2017).
On Wednesday the Senate Judiciary Committee will hold a hearing that will include testimony about the TCPA’s abuse by plaintiffs and effect on small businesses. Continue reading
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.”
A recent decision from the Northern District of Ohio highlights the importance of having a carefully drafted arbitration agreement in callers’ customer-facing contracts. See Treinish v. BorrowersFirst, Inc., No. 17-1371, 2017 U.S. Dist. LEXIS 145772 (N.D. Ohio Sept. 8, 2017).
The Plaintiff in Treinish had borrowed money from the Defendant. Id. at *1. Their contract contained two notable provisions: a provision that agreed to resolve disputes in arbitration and a provision that consented to receive automated calls from the Defendant and related entities on her cellphone. Id. at *1-2. Continue reading
On October 6, 2017, the FCC issued a Public Notice that seeks comment on a Petition that was recently filed by the Credit Union National Association. Specifically, the Public Notice seeks comment on whether it should “adopt an established business relationship exemption from the [TCPA’s] prior-express-consent requirement for informational autodialed or artificial- or prerecorded-voice calls (including text messages) made by or on behalf of credit unions to their members’ wireless phone numbers,” or, alternatively, whether it should “exercise its statutory authority to exempt from the TCPA’s prior-express-consent requirement credit union informational calls made to its members’ wireless phone numbers that are in fact free to the called party.” Continue reading
In TCPA Blog’s latest column for Law360, Mike Daly and Dan Brewer discuss the increasingly common “revocation of consent” claim. After the FCC held that consent can be revoked through “any reasonable method,” businesses found themselves struggling to comply with that directive, and plaintiffs found themselves with yet another “gotcha” claim to assert:
The two years that followed the FCC’s ruling have been marked by a dramatic uptick in what had already been a staggering number of TCPA filings, particularly “revocation of consent” claims of the sort predicted by Chairman Pai. Entrepreneurial plaintiffs have even taken to manufacturing such claims by ignoring prompts to text “STOP” and replying instead with “halt,” “cease,” “desist,” “discontinue,” “refrain,” or some other response that is designed to slip through the sender’s automated system for recognizing and registering revocations of consent. Although such contrivances are anything but “reasonable,” plaintiffs know that defending such claims are not without cost or inconvenience, and businesses continue to receive complaints and demand letters every day.
The article then details how a number of courts have started to push back on such claims, for example because the attempt to revoke consent was not “reasonable,” or because consent had been provided in a bilateral contract and therefore could not be unilaterally revoked.
After the Supreme Court held in Campbell-Ewald v. Gomez that merely offering to make a payment will not moot a claim, we predicted that defendants would explore various procedural mechanisms for arguing that actually making a payment will moot a plaintiff’s claim. Indeed, although the Supreme Court did not reach the issue, its decision strongly suggested that plaintiffs who have received complete relief—as opposed a mere offer of complete relief—no longer have live cases or controversies as required by Article III. See Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 672 (Feb. 9, 2016) (“We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff’s individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount.”). This week, however, a panel of the United States Court of Appeals for the Seventh Circuit held that not even tendering funds into a court-monitored interest-bearing account is enough to moot a claim. See Fulton Dental, LLC v. Bisco, Inc., No. 16-3574 (June 20, 2017). What, if anything, would be enough it did not say. Continue reading
The explosion of litigation under the Telephone Consumer Protection Act (“TCPA”) has continued through the second quarter of 2017. Businesses have been anxiously awaiting a ruling from the D.C. Circuit in the appeal of the Federal Communications Commission’s (“FCC”) July 2015 Declaratory Ruling and Order as well as reforms from the FCC itself. As the wait continues, promising developments have been emerging from the courts. On June 22, 2017, the Second Circuit—in a common sense and practical opinion in Reyes v. Lincoln Auto. Fin. Servs., No. 16-2104 (2d Cir.)—acknowledged that contract is king and that a party cannot unilaterally modify its terms. In affirming summary judgment in favor of the defendant, the court cited the Restatement (Second) of Contracts and explained that “[i]t is black letter law that one party may not alter a bilateral contract by revoking a term without the consent of a counterparty.” Its opinion in this TCPA action has significant implications for businesses that have standard contracts with their customers. And it is a welcome step in the right direction. Continue reading
On Tuesday, June 13, 2017, the House Judiciary Committee’s Subcommittee on the Constitution and Civil Justice held a hearing on “Lawsuit Abuse and the Telephone Consumer Protection Act.”
Based on the testimony, statements, and questions at the hearing, it seems that the Subcommittee is in the very early stages of considering possible reforms to the TCPA. Although there is no draft legislation yet, nor even an agreement in principle of what changes to pursue, several members of the Subcommittee—including Subcommittee chairman Steve King and Judiciary Committee chairman Bob Goodlatte—seem committed to find a way to rein in the statute’s disproportionately high social costs while maintaining its core purpose of protecting consumer privacy. Indeed, both Representatives expressed significant concern regarding the concrete harms that the current wave of TCPA litigation is having—injuring businesses trying in good faith to comply with the law; depriving consumers of desired (and, in some cases, sorely needed) communications; and enriching a small cohort in the legal profession who are pursuing their personal profit rather than the welfare of the American consumer. Continue reading