TCPAland already has one burning and endless controversy–the definition of ATDS–and now it looks like it has two. Plus, TCPAland defendants just received more bad news out of the Northern District of Illinois–but that’s nothing new.
Just days after the Hon. Charlene Honeywell explained that TCPA consent in consumer contracts cannot be unilaterally revoked as a matter of “black letter law” in Medly v. Dish Network, Case No. 8:16-cv-2534-T-36TBM, 2018 U.S. Dist. LEXIS 144895 (M.D. Fl. Aug. 27, 2018), two different courts have issued new opinions coming out the opposite direction, but with stark differences in reasoning.
First, in Rodriguez v. Premier Bankcard, Case No. 3:16CV2541, 2018 U.S. Dist. LEXIS 149225 (N.D. Oh. Aug. 31, 2018)–a case that is already notable for enforcing a subscribing husband’s consent in his wife’s lawsuit against his finance company— the Court meted out the consumer bar’s dream decision; ruling that the absence of a revocation provision in the pertinent consent agreement necessarily means that consent can be revoked by any reasonable means. This exact argument has been repeatedly rejected by other courts, however, since contractual provisions are never treated as subject to unilateral modification, making a testament of irrevocability completely unnecessary. This is Contracts 101 folks.
Nonetheless, the Rodriguez court refuses to “read” irrevocability into the contract–(!)– and proceeds to heap scorn upon Good Reyes for “failing to see th[e] distinction” between contractual provisions and TCPA consent. See Rodriguez at *32-33. This rather sharp assessment of Reyes by the Rodriguez is somewhat ironic. After recognizing that consent was provided as soon as a phone number was provided by a caller, Rodriguez fails to assess the additional value afforded by the contractual consent provision the Defendant bargained for and treats it as superfluous. Merely providing the number is what gave the consent; agreeing to the contractual terms is what (should have) made the consent irrevocable. In other words, Rodriguez is right that TCPA consent and contractual consent provisions are not one in the same– but despite the bold proclamations of the Rodriguez court–it appears to be Reyes and, not Rodriguez, that properly leverages the distinction into a workable formulation of law.
But Rodriguez is no island. A second court also refused to enforce a contractual consent provision to bar a TCPA claim last week, albeit for a completely different reason. See Tillman v. Hertz Corporation, Case No. 16 c 4242, 2018 WL 4144674 (N.D. Ill. Aug. 29, 2018). In Tillman, the Court actually took no issue with Good Reyes– suggesting that the case was “well-reasoned”– but deemed its hands tied by the Seventh Circuit Court of Appeal decision in Blow v. Bijora, Inc., 855 F.3d 793, 803 (7th Cir. 2017). In Blow the Seventh Circuit had recited the FCC’s rule that “consent [can] be revoked ‘at any time and through any reasonable means” but had not considered a contractual consent situation. Ibid. Nonetheless, Tillman treats Blow as binding on the issue–becoming the first district court to read Blow so broadly in the process.
So the takeaway– while one court considers irrevocability of consent to be “black letter law” another court treats it as non-existent absent specific contractual language. And, out of the blue, we have a ruling finding that contractual consent provisions are not enforceable in the Seventh Circuit at all. Where did that come from?
The Tillman holding is actually a really big deal. if other courts within the Seventh Circuit read Blow so broadly, the Seventh may replace the Eleventh as the “no go” zone of Good Reyes arguments.
Maybe I better post a Good Reyes scorecard to help everyone keep up…