Timing Is Everything in Eleventh Circuit’s Renewed Consent Case

The Eleventh Circuit recently affirmed the entry of summary judgment in favor of a student loan servicer and its affiliate, finding that their nearly 2,000 calls did not violate the TCPA because the plaintiff had renewed his consent by submitting an online demographic form. See Lucoff v. Navient Sols., LLC, No. 19-13482, 2020 WL 7090315 (11th Cir. Dec. 4, 2020).

The history of this case is somewhat winding. In 2010, the plaintiff was part of a class action against one of the defendants. Id. at *1. As part of the settlement terms, class members who did not submit revocation request forms were deemed to have provided prior express consent to receive calls regarding their student loans. Id. The plaintiff did not submit a revocation request. Id.

Then, in 2014, the plaintiff called one of the defendant’s representatives to discuss settling his consolidated student loan. Id. at *2. During that call, the plaintiff revoked his consent to receive pre-recorded messages or calls to his cell phone. Id. After doing so, but while still on the phone with that representative, he visited that defendant’s website to fill out a debit agreement for loan payments. Id. A pop-up appeared and allowed him to update his demographic information. Id. The web form pre-populated some of the plaintiff’s information, including his cell phone number, from information within the defendant’s records. Id. His cell phone number was not marked as a required field (signified by asterisks), and the auto-filled information could be edited or deleted. Id. The form also contained a disclosure consenting to receive automated calls on his cell phone. Id. The plaintiff entered that form by clicking the “submit” button. Id.

After falling behind on his loan payments, the plaintiff began to receive calls on his cell phone. Id. He then filed suit, citing his revocation of consent during his call with the service representative. Id. at *3. The district court eventually entered summary judgment against him, holding that (1) he could not unilaterally revoke consent that had been part of the “bargained-for” consideration of the class action settlement agreement, and (2) in any event he renewed his consent when he submitted the demographic form. Id.

Without addressing whether his initial consent could be unilaterally revoked, the Eleventh Circuit found for the defendants, agreeing with the district court that the plaintiff had renewed his consent when he submitted the demographic form. Id.  It began by rejecting the argument that the renewal of consent came “so soon” after the revocation of consent that it could not be considered consent. Id. at *4. The court disagreed, explaining that “consent is effective regardless of whether a party ‘intended’ to consent if his words or conduct are ‘reasonably understood by another to be intended as consent.’” Id. (internal citations omitted). Although the plaintiff “filled out the demographic form just moments after he orally revoked his prior consent,” he cited “no authority” for the proposition “that this temporal proximity should require this Court to consider the separate interactions (of revoking consent and later re-consenting) as one lumped together interaction.” Id.

The court similarly rejected the argument that the form was deceptive or misleading, as the consent provision was located above the submit button, was in the same size text as the rest of the form, and the plaintiff’s cell phone number was not a required field. Id. at *5. “Thus, the form was not misleading and [the plaintiff] cannot now escape the consequences of submitting it.” Id.

In short, despite the close timing, the Eleventh Circuit was unpersuaded by the plaintiff’s arguments where the record was clear that the form was clear and the renewal of consent came after the revocation of consent.

Michael P. Daly

About the Author: Michael P. Daly

Mike Daly has spent two decades defending, counseling and championing clients that interact with consumers. His practice focuses on defending class actions, handling critical motions and appeals, and maximizing the defensibility of marketing and enforceability of contracts. Clients large and small have trusted him to protect their businesses, budgets and brands in complex cases across the country.

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