TCPA Nitty Gritty: Plaintiff’s Use of A Fake British Accent Did Not Revoke Consent and an Agent Admitting That An “Autodialer” Was Used Does Not Prove ATDS Usage in TCPA Cases

The Archduke covered one important piece of Capital One’s win in the Johnson case last week—the Court’s application of the statutory ATDS definition and entry of partial summary judgment in Defendant’s favor on the issue—but a few additional pieces of this interesting little case are worth analyzing.

First, notice that the Plaintiff sought to stave off summary judgment by arguing that the Defendant’s agent admitted the company was using an autodialer.  According to the Plaintiff “I asked [Defendant’s agent] directly if he had used an auto dialer to contact me that day and [he]l stated that Capital One had used an auto dialer.” The Court found this evidence was insufficient to raise a triable issue, however, because the TCPA’s ATDS definition is highly specialized and a mere assertion of the use of an “autodialer” does not mean that the Defendant’s agent admitted to the use of an ATDS as defined by the statute. This is a huge—and first of its kind—ruling because, in many cases, TCPA Plaintiffs will try to bait a Defendant’s agent into conceding using of an autodialer. Many agents, unaware that a lawsuit us being set up, might simply agree to get a conversation back on track or be otherwise oblivious to the legal requirements of the TCPA. Be sure to keep Johnson in your back pocket for rebutting these sorts of arguments in the future. I know we will.

Second, and also favorable for defendants, the Court held squarely that evidence that the Plaintiff heard a click and a pause was not sufficient to survive summary judgment on the ATDS issue. While these sorts of allegations are sufficient to defeat a motion to dismiss, they do not permit an inference of ATDS usage at the Rule 56 stage. Again, keep that in mind.

Third, notice that Defendant only earned partial summary judgment in this suit. The Court found that the claims that a pre-recorded voice was used is a separate claim that can be asserted even in the absence of ATDS usage. Keep that in mind when weighing whether or not to comment on the big FCC prerecorded voice petition that is currently pending.

Fourth, notice how the Defendant properly leveraged inconsistencies in the Plaintiff’s position and its business records to trim down the possible revocation dates.  Plaintiff had stated in an interrogatory that she revoked consent in September, 2017 and again in May, 2018. Later Defendant demonstrated—and Plaintiff admitted—that the first call to the number at issue was not until October, 2017. So the Court did not credit Plaintiff’s claim of a September, 2017 revocation. Moreover, the Plaintiff later contended that she had revoked consent in November, 2017 when she dawned a fake British accent and informed the Defendant’s agent that it was calling a “wrong number,” but the Plaintiff had failed to identify the November date as a purported date of revocation in her interrogatory responses. So the evidence of the whacky November “revocation” was rejected and only the May, 2018 revocation claim was credited—an important reminder of the value of well-worded written discovery demands in TCPA suits.

Fifth, Defendant aggressively suggested that the Plaintiff’s May, 2018 request was invalid and showed unclean hands because she asked only for calls using an autodialer or pre-recorded voice to cease. In Defendant’s view, because Plaintiff had met with a lawyer before that request the Plaintiff was plainly trying to manufacture a lawsuit with this strangely-worded request. The Court disagreed. Noting, in essence, that the TCPA is a strict liability statute and that Defendant had no case law to support its position that asking for calls made in a certain manner is an ineffective way to revoke consent. (Indeed, it seems that asking for calls made using an ATDS to cease is the best— perhaps only –way to revoke consent when a Defendant has obtained clear consent to call using the technology.)  The thrust of Defendant’ argument, of course, was that the very specific revocation language demonstrated an intent to set up a TCPA suit; but the Court was unmoved that an intention to sue a Defendant for failing to follow a lawful instruction was somehow a defense to a TCPA suit.

Pretty nifty stuff.

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