On March 5, the United States District Court for the Southern District of New York ruled against a Telephone Consumer Protection Act plaintiff on the grounds that consumers cannot unilaterally revoke prior express consent that was part of a bargained-for exchange.  In Ford v. Bluestem Brands, Inc., (S.D.N.Y. Case No. 18-cv-2695), the district court dismissed a TCPA claim on the basis that contractual consent cannot be revoked.

In Ford, pro se plaintiff Kavon Denzel Ford brought suit against online retailer Bluestem Brands, alleging they called him without express consent. The Court dismissed Ford’s claim at the pleadings stage on Bluestem’s Rule 12(b)(6) motion to dismiss.

In his complaint, Ford alleged that he opened an account with Bluestem when he obtained a line of credit to buy a computer.  However, his order was later canceled when Bluestem was unable to verify his mailing address.  Ford alleged that thereafter Bluestem made calls to his number to collect money for the computer he never actually received.  Ford claimed he requested that the calls stop, and then he sued Bluestem under the TCPA when they did not stop.

Bluestem moved to dismiss, arguing the online disclosures that Ford accepted when opening an account (despite later canceling the account) contained an express consent provision.  The district court cited Reyes v. Lincoln Auto. Fin. Servs., noting that “[t]he TCPA “does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent,” and dismissed the action for failure to state a claim upon which relief could be granted.  See Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2nd Cir. 2017).

There are three nuances of note in this reading of the prior express consent requirement of the TCPA that applied Reyes in a broad way.  First, the Court considered Ford’s business dealings with Bluestem over the internet sufficient to show the bargained-for exchange discussed in Reyes.  Second, the Court enforced the bargained-for exchange rule from Reyes despite Ford’s argument that the contract was allegedly cancelled.  Third and finally, the Court specifically held that Bluestem did not agree to the alleged revocation until it was presented in a written letter, further emphasizing the Reyes rule that a contract cannot be unilaterally modified to revoke consent, and instead Bluestem must accept the modification (i.e., revocation).