The longer I live, the more convinced I become that most people are not capable of recalling facts as they actually happen, but merely recall a sensation of what they feel happened. As Nietzsche once wrote, “my memory tells me something my pride says did not occur…. over time, memory fades.”
Whether it is pride, good ole fashioned greed, or honest mistakes, I have personally witnessed a number of TCPA revocation cases animated by a seemingly earnest attestation by the Plaintiff that he or she “revoked” consent, when the facts demonstrate that simply did not occur. In most instances the Plaintiff is adamant that they asked for calls to stop—often swearing they “repeatedly” asked for calls to stop— but the recordings tell a very different tale.
Most often the recordings show—at best—that the Plaintiff actually said words to the effect of “why do you call me so often” or “what are you calling about” which—to a person used to having others pick up on hints in polite society— admittedly might feel like a “clear” request the calls to stop, but to an agent on the other end of the line, the statements “feel” more like a question about the status of the account. Of course, these facts are often then lobbed to a jury, judge or arbitrator who—lacking any clear guidance as to what is and is not a valid revocation— must decide how they “feel” about the facts themselves—thus leaving the outcome of potentially high-dollar litigation to the ravages of human “feelings” about what took place on a call.
This is TCPA litigation in 2019.
Then again, these memory failings are often exploited and exacerbated by slick advertising campaigns by consumer law shops promising quick and easy TCPA money—encouraging would-be “victims” to clog the courthouse with meritless cases and make-what-they-will contentions leveraging vague words spoken sometimes years before the suit was filed. These Plaintiffs are quick to testify how they “feel” that they’ve been victimized by a caller, especially when they stand to make tens of thousands of dollars—or more— if a jury agrees. Once the case is filed, of course, the Plaintiff stands by their story—even as countervailing evidence from a Defendant’s business records rolls in. Nobody likes to admit their wrong—especially when they “feel” they’re right. And so the meritless lawsuit plods along until the case settles or the Defendant takes the steps necessary to earn a dismissal on a contested evidentiary motion, trial, or hearing.
What a mess.
All of this brings me to the wonderful result in Young v. Medicredit Inc., 2019 U.S. Dist. LEXIS 71020 (S.D. Tex. April 26, 2019). There summary judgment in a TCPA suit was granted to a Defendant despite the Plaintiff’s—presumably honestly held—belief and testimony that she repeatedly asked for calls to stop, because the Defendant’s records demonstrated that was simply not so.
Setting the stage here, Plaintiff visited the hospital twice and incurred two different debts as a result. On each visit the Plaintiff signed a consent form affording specific and express written consent to the hospital, its vendors, and its collectors to place calls regarding those debts. She fell into default on the resulting charges and received resulting phone calls. Plaintiff sued claiming she asked for those calls to stop repeatedly and Defendant moved for summary judgment claiming that the evidence showed she did not.
While the consent Plaintiff gave might have been deemed irrevocable by virtue of Reyes v. Lincoln Financial Services, the Court did not address that issue in Young and assumed that the consent might be revoked. On that score the Plaintiff testified that she had repeatedly asked the Defendant to cease calling her, although—as often happens—she could not recall the exact dates of revocation. The Plaintiff’s mother also testified in deposition recalling Plaintiff repeatedly telling a caller identified as the Defendant to “stop calling.” Of course the mother only knew the identity of the caller based upon Plaintiff’s statements to her—rendering admission of evidence of the caller’s identity on that basis a violation of the hearsay rule—and the mother testified that the “stop calling” requests were made during a timeframe when the account had not even been placed with the Defendant for collection yet.
And then there were the call recordings. Contrary to the Plaintiff’s testimony that she had ‘repeatedly” asked for calls to stop, the Defendant’s evidence demonstrated that there has only been two connected calls with the Plaintiff at all. And in neither of those calls did Plaintiff say anything other than “who may I ask is calling” before she hangs up. In other words the concrete evidence demonstrated that everything Plaintiff and her mother had remembered was simply not true.
On this evidence the Court had little trouble finding that the Plaintiff’s vague testimony that she had asked for calls to stop did not create a triable issue—the objective call recordings provided an unyielding and unchanging record of what actually occurred.
From a litigation perspective, Young is interesting because it demonstrates how a Defendant may obtain summary judgment in a TCPA case by relying on its business records, even in the face of testimony from a Plaintiff that an unrecorded revocation yet occurred. But from a broader perspective, Young is yet another data point demonstrating how the TCPA is commonly misused and exploited—and perhaps not intentionally—by Plaintiffs and consumer lawyers relying on convenient or inaccurate memories to support a potential payday. The Young court made relatively short work of the case—although one wonders how much defense cost was incurred to tee up the dispositive motion— but there are undoubtedly dozens, if not hundreds, of similar cases working their way through the court system as I type.
One possible solution to this problem? Allowing a caller to maintain a dedicated portal tracking consumer contact preferences that the consumer can dictate via an easy-to-use interface and treating that preference as presumptively accurate for consent purposes. And that is exactly what we just proposed to the FCC last week.