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By Jimmy H. Koo
A credit card holder who told the card issuer not to call her during the day and when she was at work may have effectively partially revoked her consent to receive further automated calls, a federal appeals court held Aug. 10 ( Schweitzer v. Comenity Bank , 2017 BL 279343, 11th Cir., No. 16-10498, 8/10/17 ).
The U.S. Court of Appeals for the Eleventh Circuit said that whether plaintiff Emily Schweitzer partially revoked her consent to be called during workdays and mornings was an unresolved issue of fact, and reversed and remanded the case to the trial court.
The Telephone Consumer Protection Act (TCPA) allows consumers to sue companies that make phone calls using an automatic dialing system without prior consent. Whether a plaintiff consented to receive calls is the central issue in many TCPA cases. The ruling points to the fact-specific nature of consent and revocation of consent.
Eric Troutman, TCPA partner at Dorsey & Whitney LLP in Costa Mesa, Calif., said that “in law, as in life, consent need not be an all-or-nothing proposition.”
The Eleventh Circuit’s opinion is “a new nightmare for compliance counsel,” Troutman said in a statement to Bloomberg BNA.
Schweitzer applied for and received a credit card from defendant Comenity Bank. In her application, she provided her mobile phone number. After Schweitzer failed to make required payments, Comenity called her mobile phone about the delinquency, using an automated telephone dialing system.
During one of the phone calls, Schweitzer told the caller that she was at work at that Comenity couldn’t call her in the morning and during the work day. Comenity called her five months later at work during the morning, and she sued, alleging a violation of the TCPA. The trial court ruled in favor of Comenity, finding the bank had no reason to know that Schweitzer wanted no more calls.
On appeal, Judge Adalberto Jordan said a reasonable jury could find that Schweitzer partially revoked her consent. Judges Jill A. Pryor and L. Scott Coogler joined the opinion.
Wites & Kapetan PA represented Schweitzer. Golden Scaz Gagain PLLC represented Comenity.
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The court's opinion is available at http://src.bna.com/rzb.
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