The Court of Appeals for the Eleventh Circuit has affirmed a lower court’s ruling in favor of a defendant that was sued for violating the Telephone Consumer Protection Act by contacting an individual on his cell phone using an automated telephone dialing system because the plaintiff re-consented to being contacted by filling out a form on the defendant’s website.
A copy of the ruling in the case of Lucoff v. Navient Solutions and Student Assistance Corp. can be accessed by clicking here.
There is a somewhat long and winding path of background in the case, but the relevant facts are: the plaintiff was part of a class-action settlement against one of the defendants in 2010. As part of the settlement, those members of the class who did not submit revocation request forms were deemed to have provided prior express consent to be contacted. The plaintiff admits he did not submit his form. In 2014, the plaintiff revoked consent to being contacted using an ATDS while on the phone with a representative from one of the defendants. While still on the phone with the defendant, the plaintiff went to the defendant’s website to fill out an automatic debit agreement to make payments on his loan. As part of that process, he was invited to update his contact information. The form that popped up already had some of the plaintiff’s information pre-populated, including his cell phone number. That field was not required and the information in it could have been deleted by the plaintiff, should he have chosen to do so. Above the “submit” button on the form was a disclosure that granted the defendant consent to contact the plaintiff on his cell phone using an ATDS.
The defendant began contacting the plaintiff on his cell phone, at which point the plaintiff sued the defendant, alleging it had violated the TCPA. A District Court judge sided with the defendant, granting its motion for summary judgment, which the plaintiff appealed.
The plaintiff argued that he did not re-consent to being contacted because the form was submitted directly after his conversation with the defendant’s representative where the consent was revoked and because the language in the disclosure was misleading and deceptive. The plaintiff said the defendant should have known that he did not intend to re-consent “so soon” after speaking with the defendant on the phone, but like the District Court, the Appeals Court ruled that timing was everything in this case.
“While it is true that Lucoff filled out the demographic form just moments after he orally revoked his prior consent, Lucoff cites no authority that this temporal proximity should require this Court to consider the separate interactions (of revoking consent and later reconsenting) as one lumped together interaction,” the Appeals Court wrote. “Accordingly, we disagree with Lucoff’s argument that the revocation of consent standard should stretch to apply to Lucoff’s later reconsent to Navient.”
