Court Enters Summary Judgment Against Plaintiff, Finds No Triable Issues Regarding Revocation of Consent

The Eastern District of California recently entered summary judgment against a plaintiff because it found that the plaintiff failed to revoke his consent to receive auto-dialed calls on his cell phone.  Wright v. USAA Savings Bank, No. 19-0591, 2020 WL 2615441, at *1-5 (E.D. Cal. May 22, 2020).  The case illustrates that defendants in the Ninth Circuit can still prevail on consent and other issues even though they may face an uphill battle on ATDS issues.

The plaintiff in Wright applied for a credit card and listed his cell phone number on the application.  Id. at *1. He developed terminal cancer in 2018 and failed to make payments on the credit card.  Id. Between July 2018 and January 2019, defendants’ agent called Mr. Wright’s cellphone number using the Aspect Dialing System to collect the credit card debt. Id. Evidence established that the Aspect Dialing System is a predictive dialer that does not have and is not capable of using a random or sequential number generator to dial numbers. Id.

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11th Circuit Holds that Consumers Cannot Unilaterally Revoke Contractual Consent to Automated Calls

The Eleventh Circuit recently affirmed the district court’s summary judgment ruling that a defendant’s calls did not violate the Telephone Consumer Protection Act (“TCPA”) because consumers cannot unilaterally revoke consent that was part of a bilateral contract.

In Medley v. Dish Network, LLC, No. 18-13841, 2020 WL 2092594 (11th Cir. May 1, 2020), Medley entered a two-year contract with DISH for satellite television services. As part of the service contract, Medley provided her cell phone number to DISH and expressly authorized DISH “‘to contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system.’” Medley, 2020 WL 2092594, at *1. Approximately eleven months later, Medley temporarily suspended her service under an optional provision of the contract, which triggered a $5.00 monthly fee in lieu of service charges. Medley then underwent bankruptcy, which discharged approximately $800 that she owed to DISH. Following this discharge, DISH called Medley to recover outstanding fees accrued as a result of her temporary pause in service. In response to emails from DISH, Medley’s bankruptcy lawyer sent DISH faxes stating that the lawyer represented Medley with regard to her debts.  DISH continued to contact Medley following these faxes.

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Central District of California Grants Motion for Summary Judgment After Finding That Plaintiff Failed to Revoke Prior Express Consent To Be Called

The Central District of California recently granted summary judgment to the defendant on a TCPA claim in Mendoza v. Allied Interstate LLC, SACV 17-885 JVS (KESx), 2019 WL 5616961 (C.D. Cal. Oct. 22, 2019), finding that the plaintiff had not sufficiently proven revocation of consent to be called about two credit card accounts when he had revoked consent to be called about two other accounts serviced by the same card issuer.

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TCPA Class Allegations Stricken Due to “Unique Defenses Peculiar to Plaintiff’s Case”

The Northern District of Illinois recently clarified that a “revocation class” that defines a putative class as those having made “a request to stop calling [their] number” does not satisfy Rule 23(b)(3)’s predominance requirement. This memorandum opinion again highlights the significance of individualized issues of consent in a TCPA class certification process. Continue reading   »

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). Continue reading   »

Trial Courts Split On Whether Consumers Can Unilaterally Revoke Contractual Consent

As we discussed last year, the Second Circuit has held that consumers cannot unilaterally revoke consent that was provided as part of a bilateral contract. See Reyes v. Lincoln Automotive Fin. Servs., 861 F.3d 51 (2017). In doing so, it explained that it is “black letter law” that a “party may not alter a bilateral
contract . . . without the consent of a counterparty,” and that nothing in the TCPA purports to “permit a consumer to revoke his consent to be called when that consent forms part of a bargained-for exchange.” Although this seemingly straightforward statement is now settled within the Second Circuit, see, e.g., Harris v. Navient Solutions, LLC, No. 15-0546, 2018 U.S. Dist. LEXIS 140317 (D. Conn. Aug. 7, 2018), it remains unsettled elsewhere. Continue reading   »

Court Denies Plaintiff’s Summary Judgment Motion, Cites Factual Dispute Regarding Whether Plaintiff Revoked Consent

The Eastern District of Michigan recently denied a plaintiff’s motion for summary judgment because the defendant raised a genuine issue of material fact regarding whether the plaintiff had revoked his consent to receive the challenged calls. See Mayang v. PAR Grp., Inc., No. 17-12447, 2018 U.S. Dist. LEXIS 118784 (E.D. Mich. July 17, 2018). Continue reading   »

Comments Filed in Reassigned Numbers and Post-ACA International Proceedings

Two important TCPA proceedings are underway at the FCC. The first proceeding addresses the potential creation of a reassigned number database and the second proceeding involves a host of key issues in the wake of the D.C. Circuit ruling in ACA International v. Federal Communications Commission, No. 15-1211 (D.C. Cir. March. 16, 2018), including reassigned number liability, revocation of consent and the definition of an “automatic telephone dialing system.” Cf. 47 U.S. Code § 227(a)(1). Continue reading   »

FCC Seeks Comments on Key Issues Post-ACA Int’l

Less than a week after the D.C. Circuit issued its mandate in the ACA Int’l v. FCC matter, the FCC has now asked for comments on critical TCPA issues in light of the D.C. Circuit’s now-final decision. See ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

In its May 14, 2018 Public Notice, the Consumer and Governmental Affairs Bureau has identified several key issues on which it seeks comments, including the scope of the ATDS definition, how to treat calls to reassigned numbers, and standards for revoking consent. On each issue, the Notice confirms that the FCC is taking a much broader view of the TCPA landscape than it did in its 2015 Declaratory Ruling and Order (“2015 TCPA Order”)—and is willing to consider, in light of the ACA Int’l decision, bright-line rules that will provide much-needed clarity to businesses and litigants. Continue reading   »

Senators Urge FCC to Act in the Face of ACA Int’l

On April 18, 2018, a group of fifteen Democratic senators addressed a letter to FCC Chairman Pai related to the D.C. Circuit’s recent decision in ACA Int’l v. Fed. Commc’ns Comm’n, 885 F.3d 687 (D.C. Cir. 2018). The letter notes that the ACA decision “struck down portions of a 2015 Federal Communications Commission (FCC) Omnibus Declaratory Ruling and Order limiting the definition of automatic telephone dialing systems (auto dialers), which are technologies that can be used to rapidly call and text large groups of consumers,” and expresses concern that “[w]hile the Court maintained the right to revoke consent, the Court’s ruling could be interpreted to suggest that callers could limit consumers’ method to revoke consent to receive robocalls and robotexts through provisions buried in contracts or service agreements,” which would “upend the meaning and the goals of the TCPA.” The senators ask Chairman Pai and the FCC to take the following actions: Continue reading   »