The Eleventh Circuit Court of Appeals continues to make life difficult for TCPA class action Plaintiffs and their counsel.
TCPAWorld.com readers already know about how the Eleventh Circuit has become the most hostile place in the nation to litigate these cases—indeed the Court has taken away all incentive from Plaintiff’s to bring such suits within its footprint.
Nonetheless, the Court’s latest ruling may be its most aggressive—and wonderful—TCPA ruling to date.
In Lucoff v. Navient Sol., LLC, No. 19-13482, 2020 U.S. App. LEXIS 37868 (11th Cir. December 4, 2020) the Plaintiff was a class member in an earlier class action settlement that included a provision that all class members who did not opt out consented to calls for TCPA purposes moving forward. In other words, by doing nothing at all unnamed class members were deemed to have provided consent to receive automated calls on their cell phones. Not bad right?
Making matters more interesting, by virtue of one of the Eleventh Circuit’s earlier “dismantle-the-TCPA-machine” rulings, contractual consent of this sort is not even revocable. So, in theory, the Plaintiff can be locked into irrevocable consent by failing to opt out of a class action settlement. Read those little post cards carefully folks.
In Lucoff, the Plaintiff claims he revoked his consent in a phone call years after the class action settlement was final. The Defendant argued that the revocation should not count because of the consent language in the class agreement. The Eleventh Circuit wouldn’t go that far—it reserved the issue in a lengthy footnote—but what it did was, in many ways, even better.
The Defendant had a pop up on its website that required folks to review demographic information and offered the option to update information. The form pre-populated the plaintiff’s cell phone number and contained a disclosure that by submitting the form the consumer was consenting to receive automated calls. Plaintiff accessed the website, saw the phone number, and clicked the button to accept the information as accurate not realizing—he claims—that he was thereby providing consent to be called on the number.
Complicating matters, just moments before he accessed the website he was on the phone with Defendant’s agents and clearly answered “no” (twice) when asked whether the Defendant could call his cell phone using an ATDS.
While this fact pattern seems tricky the Court treated is as quite simple. The revocation came first and the consent came after. So even if Plaintiff had revoked consent to receive calls by answering “no” to an unnecessary oral script—the Defendant already had consent and nearly shot itself in the foot by asking for consent a second time— the revocation would not make later calls actionable under the TCPA because the subsequent submission of the form was sufficient to re-consent.
But what about this form?
Plaintiff argued this was mere trickeration. The form re-submitted plaintiff’s own phone number back to him as an apparent guise to obtain consent that Defendant did not otherwise have. In other words, plaintiff argued the form was deceptive and misleading because he was basically presented with accurate demographic information in a bid to capture consent—not to verify his information.
The Court was unmoved determining that the demographic disclosure language was clear, unambiguous and BIG enough to be read by the consumer. Plus nothing about the form suggested supplying a number was required. Here’s the key finding:
The provision was located above the submit button and was in the same sized text as the rest of the online demographic form. Lucoff’s cell phone number was not marked as a “required field” (signified by asterisks) on the demographic form, and the information auto-filled into the form could be edited or deleted. The only reason Navient had Lucoff’s information in its records (to autofill portions of the form) is because Lucoff had previously provided it to Navient. Thus, the form was not misleading and Lucoff cannot now escape the consequences of submitting it.
Even more magnificent, the Court squarely held that consumer intent is irrelevant on the issue of consent. As the Court put it: under common law, consent is effective regardless of whether a party “intended” to consent if his words or conduct are “reasonably understood by another to be intended as consent.” even if Lucoff did not want to receive ATDS or prerecorded calls, he nonetheless provided apparent consent to Navient and SAC by submitting the online demographic form that contained his cell phone number and a clear, unambiguous consent provision.
You’ve heard of express consent, implied consent, implied express consent—but now you can add “apparent express consent” to the list of fun TCPA concepts to fight over. Only in TCPAWorld folks.
Obviously the Eleventh Circuit continues to be a very tough place for TCPA plaintiffs to litigate but there are a few takeaways here. First, as just explained, claims by a consumer that they did not “mean” to consent are going to fall on deaf ears in the face of clear objective evidence to the contrary. This is true even of website submissions where the disclosures are properly conspicuous–but beware of the “busy” website pages folks.
More importantly, Lucoff appears to bless the use of online demographic “confirmation” forms as a means of capturing consent across a portfolio. If you can drive traffic to your website and then display accurate contact information along with a consent disclosure Lucoff suggests you can grab quite a bit of consent pretty quickly. And while Lucoff deals with servicing calls, there doesn’t seem to be any reason that marketing consent cannot be obtained the same way–although a more robust form would be needed.
Always happy to discuss.