The Southern District of Florida recently issued a positive decision for businesses defending Telephone Consumer Protection Act lawsuits who place calls pursuant to contractually granted consent. In Lucoff v. Navient Sols., LLC, No. 0:18-cv-60743-RAR, 2019 U.S. Dist. LEXIS 133577 (S.D. Fla. Aug. 7, 2019), the Court affirmed and adopted the Magistrate’s Report and Recommendation and held that consent granted as part of a bargained for exchange cannot be unilaterally revoked. The District Judge’s Order can be found here and the Magistrate Judge’s Report and Recommendation here.
Lucoff was class member in a prior TCPA class action against Navient (formerly Sallie Mae), a student loan servicer, which was certified as a provisional settlement class action on April 23, 2012, and resulted in a final judgment entered on September 17, 2012. As part of the settlement, class members were required to submit a timely revocation request or were deemed to have expressly consented to calls using both an autodialer and an artificial or pre-recorded voice. Lucoff did not submit a revocation request under the settlement agreement.
While later servicing his student loan, Navient spoke with Lucoff by phone, confirmed his cell phone number, and asked if he consented to receiving autodialer or pre-recorded messages regarding his account. Lucoff stated “no” and argues this was a valid revocation. The Court disagreed.
In a well-reasoned Order, the Court explained that under ACA Int’l, “the 2015 FCC Ruling [stating consumers may revoke consent by any reasonable means] does not apply in circumstances where the consumer has given consent as consideration in a bargained-for contract.” The Court then discussed the Second Circuit’s decision in Reyes, which held that under common law, consent can “‘become irrevocable’ when it is provided in a legally binding agreement, in which case any ‘attempted termination’ is not effective.” The Court also examined other decisions in Florida, including Medley v. Dish Network, a 2018 Middle District of Florida decision holding that consent provided as part of a contract for services, and not gratuitously, could not be unilaterally revoked.
The Court concluded its revocation analysis by holding that “[u]nder common law, Lucoff’s consent was irrevocable, and any attempt to revoke his prior consent was ineffective because the consent given was consideration for the [prior] settlement.” Therefore, Navient did not, as a matter of law, violate the TCPA for subsequent autodialer or pre-recorded calls.
The Court also went on to find Lucoff’s claims further failed as he reconsented by submitting demographic information via Navient’s online portal, which included a provision authorizing autodialed and pre-recorded calls.
Lucoff provides a good decision for businesses defending TCPA lawsuits and serves as a helpful reminder that, at least in the Southern District of Florida, “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.” Similar to the continued litigation over what qualifies as an automatic telephone dialing system under the TCPA, the issue of whether a consumer may unilaterally revoke consent granted as part of a bargained for exchange will continue to be heavily litigated in TCPA cases as individual judges grapple with how to decide this issue.