On December 4, 2020, the Eleventh Circuit issued a ruling in Lucoff v. Navient Solutions, LLC, et al., holding Lucoff’s oral revocation of consent to be contacted under the Telephone Consumer Protection Act (“TCPA”) followed by re-consenting to be contacted minutes later via an online form was valid consent under the TCPA.

Lucoff was part of a class action against Navient Solutions, LLC (“Navient”) and its affiliate Student Assistance Corporations (“SAC”) in 2010. As part of the settlement, class members who failed to submit a revocation request form were deemed to have provided prior express consent to receiving Navient and its affiliates’ calls. While Lucoff did not dispute receiving the e-mail containing this information, he testified he did not actually remember receiving the e-mail or reading it.

In 2014, Lucoff revoked his consent to be contacted via an automatic telephone dialing system (“ATDS”) while on the phone with a representative of Navient. During this phone call and after his revocation, Lucoff went to Navient’s website and filled out an automatic debit agreement to make payments on his loan. In doing such, a form to update Lucoff’s contact information popped up. The form was pre-populated with some of Lucoff’s information, including his cell phone number. However, Lucoff’s cell phone number was not required in order to submit the form and Lucoff could have deleted his number. Above the “submit” button, a disclosure appeared which granted Navient and its affiliates consent to contact Lucoff on his cell phone number using an “automated dialing device” or calls using “prerecorded messages.” It is undisputed that Lucoff fell behind on his payments so Navient and SAC began calling his cell phone using a “non-manual automated device” and prerecorded messages.

Lucoff sued Navient and SAC for TCPA violations, alleging they called his cell phone almost 2,000 times regarding his unpaid student loan. Specifically, Lucoff alleged these companies did not have his express permission to call his cell phone using an ATDS and prerecorded messages under the TCPA. Lucoff argued that he revoked any consent while on the phone with Navient. Navient countered that Lucoff provided express consent because he was bound by the class action settlement in 2010 and that he consented when he submitted the online form in 2014.

The District Court for the Southern District of Florida ruled: (1) Lucoff could not unilaterally revoke his consent to be called by Navient and SAC because such consent was given as valid consideration in the class action settlement, and (2) even if Lucoff orally revoked his consent to be called while on the phone with Navient, he reconsented when he submitted the online form with his contact information. The Eleventh Circuit affirmed the District Court’s ruling that Lucoff expressly consented to receive these calls when he submitted the online form, which led it to conclude it did not need to address the issue of whether consent was given in the 2010 class action settlement.