Revocation by Lawsuit: Judge Rules Service of TCPA Complaint Instantly Revoked Consent
It has been a fairly quiet start to 2018 in TCPAland, but February has ushered in a series of cases worth talking about.
The first is McMillion v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2018 U.S. Dist. LEXIS 17784 (N.D. Cal. Feb. 2, 2018). You may recall that back in September 2017, Judge Yvonne Gonzalez Rogers certified a number of skip trace classes in this case. Well, her latest ruling in McMillion is a veritable grab bag of TCPA wonders.
The most interesting piece of the opinion is the first-in-the-nation holding that filing and serving a TCPA suit per se operates to revoke consent as a matter of law. Indeed, the Court entered partial summary judgment in favor of one of the Plaintiffs solely on that basis, finding: “service of plaintiffs’ complaint effectively revoked consent to be called by [defendant] regarding all debts which McMillion allegedly owed.”
Since I’m a curious fellow, I pulled the complaint at issue and was intrigued to learn that it did not allege the phone number being called. Yet the Court still found that the service of the complaint immediately effectuated a revocation of consent, even though Defendant and its counsel may not have learned what number was at issue until days or weeks later. Keep that in mind folks—time is of the essence here. Obtaining the number at issue from counsel and stopping calls to the number at issue must be done promptly to avoid further exposure. If Counsel won’t play ball, make sure to alert the Court to that bad faith conduct.
Next, the McMillion Court held that the Defendants’ predictive dialers qualified as an ATDS. No surprise there, unfortunately. Until the D.C. Circuit does its job and reverses the FCC’s decades of unlawful TCPA expansion, we’ll be stuck with these sorts of rulings.
Additionally, the Court held that calls placed to a Plaintiff whose number was provided to Defendant via a third party were not made with consent. The key to this portion of the ruling was Defendant’s apparent inability to marshal evidence that the third party was authorized to provide the number on behalf of the called party.
Finally, while 2017 saw a trend toward letting revocation claims go to the jury—even where the language used was seemingly quite clear—Judge Rogers had no problem pulling the trigger in favor of one of the Plaintiffs in light of call recordings in which that Plaintiff stated, “I told you guys to stop called me, but you guys keep calling me . . . . I asked you nicely to stop calling and that I didn’t have anything that you needed at the moment but if I do  come across it I’ll definitely give you guys a call. But you guys are not supposed to be contacting me.” Personally, I don’t see where the Plaintiff actually asked not to be called in that recording, but I can see where the judge is coming from.