CONSENT BLUES: New TCPA Case Shows How Tricky it Can be to Prove Up Consent For Calls

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Bunch of TCPA cases piling up on my desk to report on. Busy–but happy Czar– right now.

A few of these are pretty interesting.

In Foster v. National Recovery Agency, 17-CV-6-LJV-HKS, 2023 WL 2612496 (W.D. N.Y. March 23, 2023), for instance, the Court determined neither side had met their burden of proof on cross summary judgment motions related to the number of calls that were made. They disputed, for instance, how many calls were made using a prerecorded voice versus other technology. So the issue was headed to the jury.

But the Defendant also sought judgment to enforce a consent record, and this part was interesting to me. The Defendant was a debt collector calling about a medical debt. The number at issue had purportedly been provided to the hospital where Plaintiff had sought care. But all Defendant could produce was the intake form with the phone number- Defendant was unable to actually authenticate the record or connect it back to the Plaintiff.

Folks forget that the rules of evidence in federal court do not just allow a party to lob a record at the court and expect the court to accept its contents. While a written consent record is technically not hearsay–it is legally operative conduct and not submitted for the truth of the record–it still must be authenticated as valid by a witness with personal knowledge. Here Defendant could not make that showing.

And even if the consent record is authenticated as an actual document purporting to be what it appears to be, a Plaintiff may still deny having signed the record–as Plaintiff did here–which raises a question of fact. Maybe the hospital admissions team forged the record and simply lied to the debt collector! Seems unlikely, but in Court the jury–and not the judge–will need to make that determination.

Consent issues permeate lead generation TCPA cases, of course, where a caller relies on the accuracy of a record sold to it by a third-party. But, as Foster shows, this issue is not limited to lead generation cases.

If you have questions about how to get YOUR consent into evidence, give the Czar a call. I’ve done it a couple of times. 😉

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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