In Law360 Article, Akin Gump Litigators Discuss Consent in TCPA Cases
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Law360 has published the article “2 Courts Accept Contract Terms That Limit TCPA Exposure,” written by Akin Gump litigation partners Meredith Slawe, Michael McTigue and Michael Stortz and associate Marshall Baker. The article examines some of the ways that companies can reduce the risk of exposure to litigation involving the Telephone Consumer Protection Act (TCPA) and what to expect from the Federal Communications Commission in the future with regard to debt collection calls.
The authors begin with a look at a major issue regarding the TCPA, which is “whether a called party has provided prior express consent to receive certain telephone calls (or text messages, which are treated as calls under the TCPA) using an [automatic telephone dialing system] or a prerecorded voice.” They write that plaintiffs occasionally “assert claims by arguing that any consent provided was subsequently revoked, at an often unspecified time.” While several courts, they note, “have previously held that consumers may indeed revoke consent — at times relying on FCC orders — more recent decisions reveal that revocation is not absolute.”
As an example, the authors cite a case from the U.S. Court of Appeals for the 2nd Circuit, Reyes v. Lincoln Automotive Financial Services, in which it was found that the plaintiff’s revocation was ineffective. While no other appellate courts have followed the rationale used in Reyes, other district courts have, adding “to the growing body of cases that have held that revocation of consent in TCPA actions is limited in instances where that consent was obtained through a bargained-for contract.”
Slawe, McTigue, Stortz and Baker write that the FCC “has yet to address the scenario of consent obtained by a bilateral contract” in TCPA cases. As a result, the issue will likely remain an active one within the federal courts. In the meantime, they advise caution with the TCPA’s “other myriad regulations, viewing a consent as only one potential link in the compliance chain.”
To read the full article, please click here.
