Burr & Forman

03.7.2019   |   Blog Articles, Revocation, Telephone Consumer Protection Act

Southern District of New York Holds Consent Cannot Be Unilaterally Revoked

Ford v. Bluestem Brands, Inc., No. 18 CV 2695 (VB), 2019 WL 1046367 (S.D.N.Y. March 4, 2019)

Defendant provided Plaintiff with a $300 line of credit Plaintiff used to purchase a laptop from Defendant. Plaintiff claimed he received a letter from Defendant canceling his order, never received the laptop and Defendant could not prove he did. When Defendant sought to collect payment for the laptop, Plaintiff allegedly told Defendant he never received it, disputed the payment and required all future communications be by mail. Plaintiff claimed that despite this notification, he received “harassing calls” from Defendant “’every day[,] sometimes twice a day.’”

Plaintiff filed suit alleging, among other claims, violation of Telephone Consumer Protection Act (TCPA). Dismissing Plaintiff’s TCPA the Court stated:

Plaintiff fails plausibly to allege defendant called him after the parties agreed to revoke plaintiff’s prior consent to receive calls. Plaintiff concedes he consented to receive calls when he applied for an account with defendant. Although plaintiff alleges he repeatedly revoked that consent, under the TCPA, a party cannot “unilaterally” revoke prior express consent to be contacted. See Reyes v Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017) as amended (Aug. 21, 2017).  On March 27, 2017, defendant recognized plaintiff’s revocation of consent in a letter. Plaintiff does not allege any contacts by telephone after that date.

The Court also stated that “reading the Complaint liberally, [it could] not find any allegations that suggest plaintiff has a valid claim he has merely ‘inadequately or inartfully pleaded’ and therefore should be ‘given a change to reframe.’ On the contrary, the Court finds that repleading would be futile because the problems with plaintiff’s complaint are substantive, and supplementary or improved pleading would not cure its deficiencies.”

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