District Court (Fla.) Applies Reyes, Holding that TCPA Plaintiff Cannot Unilaterally Revoke Consent

In Lucoff v. Navient Sols., LLC, No. 18-60743-CIV, 2019 U.S. Dist. LEXIS 89879 (S.D. Fla. May 28, 2019), Judge McAlily found that a TCPA Plaintiff could not revoke contractually bargained for consent.

The Eleventh Circuit has held that a consumer is “free to orally revoke any consent previously given” under the TCPA “in the absence of any [*11]  contractual restriction to the contrary.” Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014). Plaintiff relies on this holding to argue that he revoked his prior express consent to receive autodialed or prerecorded calls from Defendants because, during his June 24, 2014 telephone call with Navient’s representative, he answered “No” when asked if Defendants could contact him on his cellular telephone using an auto-dialer or prerecorded messages. (ECF Nos. 44 at 7; 22, 45 at ¶¶ 20-21; 30-1 at 18). However, before he attempted to revoke his consent, Plaintiff was an Arthur class member and was bound by the Arthur Settlement. Fostano v. Pioneer Credit Recovery, Inc., No. 13-80511-CIV, 2014 U.S. Dist. LEXIS 21260, 2014 WL 657680 at *4 (S.D. Fla. Feb. 20, 2014) (“[i]n the absence of a reversal of [the Arthur Settlement] Order and Judgement on appeal, it remains binding upon Plaintiff….”). The Amended Arthur Settlement Agreement is a contract in which Plaintiff consented to receive autodialed and prerecorded calls from Defendants to his cellular telephone unless he submitted a Revocation Request, which he did not. (ECF Nos. 22, 45 at ¶¶ 34-35; 23-3 at p. 3, ¶¶ 5-6, 8; 23-3 at pp. 17, 19). The opportunity for a class member to submit a Revocation Request, and the class member’s express consent to receive automated calls [*12]  if he did not timely do so, was a form of consideration provided in the Arthur Settlement. (ECF No. 23-3 at p. 3, ¶ 8). Another court, Rodriguez v. Student Assistance Corporation, No. 17-CV-01577, 2017 U.S. Dist. LEXIS 183588, 2017 WL 11050423 at *1 (E.D.N.Y. Nov. 6, 2017), considered the precise issue here: whether an Arthur class member who did not submit a Revocation Request can later unilaterally revoke his consent. The plaintiff in that case, like Plaintiff here, was an Arthur class member who received notice of the settlement, did not opt out, did not file a Claim Form, did not execute a Revocation Request and later sued the same defendants here, SAC and Navient, for violation of the TCPA. 2017 U.S. Dist. LEXIS 183588, [WL] at *1-2. The Rodriguez court recognized that as an Arthur class member: [P]laintiff received consideration in exchange for her consent. She did not have to accept it. She could have opted out of the settlement agreement. She could have executed a Revocation Agreement. By choosing not to do either, she can no more maintain this action than she could start a new one against Sallie Mae for conduct that formed the basis of the allegations in the class action. 2017 U.S. Dist. LEXIS 183588, [WL] at *3 (citations omitted). The plaintiff in Rodriguez argued, as Plaintiff argues here, that her revocation was permissible based upon a 2015 FTC Ruling that “a caller may not limit the manner [*13]  in which revocation may occur.” Id.; (ECF No. 44 at 7). In rejecting this argument, the Rodriguez court relied on the Second Circuit’s decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51 (2d Cir. 2017), which found the 2015 FTC Ruling inapplicable because it addressed a consumer who gratuitously gave his consent to be contacted, which is “fundamentally different from revoking bargained-for consent.” Rodriguez, 2017 U.S. Dist. LEXIS 183588, 2017 WL 11050423 at *3. The Rodgriuez court concluded that “[h]ad plaintiff submitted a Revocation Request, defendants would have lost the contractually granted right to contact her. But she did not, and that right was bargained-for consideration that she could not unilaterally revoke.” Id. I find the reasoning of Rodriguez and Reyes persuasive, and adopt it here to conclude that because Plaintiff did not submit a Revocation Request, he could not unilaterally revoke his express consent to receive autodialed and prerecorded calls from Defendants, which he gave as part of the Arthur Settlement. This conclusion is consistent with decisions of other courts in this Circuit. For example, in Medley v. Dish Network, LLC, the court considered whether a consumer could revoke her consent to receive automated calls from the defendant, which she provided as part of the parties’ [*14]  contract, a Digital Home Advantage Plan Agreement. Medley, No. 8:16-cv-2534, 2018 U.S. Dist. LEXIS 144895, 2018 WL 4092120 at *1 (M.D. Fla. Aug. 27, 2018). The Medley court recognized that the Eleventh Circuit’s decision in Osario did not address the issue before it, “which is whether consent may be unilaterally revoked when it is given as part of a bargained-for contract.” 2018 U.S. Dist. LEXIS 144895, [WL] at *9-12. The Medley court conducted a thorough review of the caselaw on this issue, both within and outside this Circuit, and concluded that express consent provided as part of a contractual provision could not be unilaterally revoked. Id. (collecting cases). It reasoned that: Because an agreement is a manifestation of mutual assent on the part of two or more persons, it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed. **** Nothing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction to black-letter law. 2018 U.S. Dist. LEXIS 144895, [WL] at *10 (quotation marks and citations omitted). I agree with the reasoning of the Medley court and adopt it here. In sum, as reflected in the Arthur Settlement, the parties bargained for Plaintiff’s prior express consent to receive autodialed and [*15]  prerecorded calls from Defendants to his cellular telephone number. Plaintiff’s attempted revocation during his June 24, 2014 call with Navient’s representative was not effective because Plaintiff could not unilaterally revoke his prior consent, which he gave as part of a bargained-for contract (i.e., the Arthur Settlement). Thus, Defendants’ calls to Plaintiff’s cellular telephone did not violate the TCPA because they had his prior express consent to make such calls. Accordingly, the undisputed material facts establish as matter of law that Defendants did not violate the TCPA and, therefore, they are entitled to summary judgment on the Complaint.