Consumer Finance Litigation

The Northern District of Alabama recently followed the Second Circuit's holding in Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), and held that consent provided in a contract as part of a bargained-for exchange could not be unilaterally revoked under the TCPA. With this holding, the Northern District of Alabama becomes the first court in the Eleventh Circuit to follow Reyes.

In Few v. Receivables Performance Management, No. 1:17-CV-2038-KOB, 2018 WL 3772863 (N.D. Ala. Aug. 9, 2018), Plaintiff alleged that Defendant violated the TCPA by calling and texting her cell phone using an automated telephone dialing system in an attempt to collect a debt. Plaintiff provided the cell number at issue to DISH to receive satellite television and internet services and, by signing the contract, authorized DISH "and/or any debt collection agency and/or debt collection attorney hired by DISH" to contact her at that number "through an automated or predictive dialing system or prerecorded messaging system." Few, 2018 WL 3772863, at *2. DISH provided the number at issue to Defendant to collect the alleged debt and, during one of the collection calls, Plaintiff told Defendant that she no longer wanted to receive calls. Defendant continued to contact Plaintiff.

Defendant moved for summary judgment, arguing that Plaintiff could not unilaterally revoke her consent to receive debt collection calls, because she provided consent as part of a bargained-for exchange. When evaluating revocation of consent under the TCPA, the court looked to the Eleventh Circuit's holding in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014), and said that it should be evaluated "by considering 'the common law concept of consent.'" 2018 WL 3772863, at *2 (quoting Osorio, 746 F.2d at 1255). While Osorio held that the common law allows for unilateral revocation of consent, the court aptly noted that Eleventh Circuit said it applies only "in the absence of any contractual restriction to the contrary." Id.

The court recognized that the Eleventh Circuit did not elaborate on how a contractual agreement bears on revocation of consent under the TCPA, but noted that the Second Circuit has. Citing the Second Circuit's "persuasively reasoned" decision in Reyes, the court held that Plaintiff gave prior express consent to call, and "because she offered that consent as part of a bargained-for exchange and not merely gratuitously, she was unable to unilaterally revoke that consent." Id. Accordingly, the court held that calls made after Plaintiff orally revoked consent did not violate the TCPA and granted summary judgment in favor of Defendant.

The Few decision is particularly significant because it highlights the Eleventh Circuit's acknowledgment that revocation of consent can be contractually restricted. And, the Few decision lends support for the application of Reyes in cases outside the Second Circuit.