Emily Schweitzer v. Comenity Bank
2017 U.S. App. LEXIS 14769
| 11th Cir. | 2017Background
- Plaintiff Emily Schweitzer obtained a Comenity Bank credit card in 2012 and provided her cellular number; Comenity placed automated calls after she fell delinquent.
- On October 13, 2014, Schweitzer told a Comenity employee she couldn’t talk at work and asked that Comenity not call her “in the morning and during the work day.”
- A different employee on March 19, 2015, twice told Comenity to stop calling; automated calls ceased after that conversation.
- Schweitzer sued under the TCPA, alleging that Comenity’s automated calls between October 2014 and March 2015 violated the Act because she had revoked consent (partially) on October 13.
- The district court granted summary judgment for Comenity, finding (1) Comenity lacked reason to know Schweitzer wanted no further calls and (2) Schweitzer’s time-limiting language was insufficiently definite to revoke consent.
- The Eleventh Circuit reversed and remanded, holding the TCPA permits partial (time-limited) revocation and that a jury question exists about whether Schweitzer’s October 13 statements revoked consent for morning/workday calls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the TCPA permits partial revocation of consent to automated calls | Osorio allows oral revocation; common-law consent may be limited, so partial revocation is allowed | Consent must be all-or-nothing; only unequivocal requests to stop all calls revoke consent | TCPA permits partial (limited) revocation; common-law principles support limited consent |
| Standard for when consent is revoked | Consent ends when caller knows or has reason to know the recipient is unwilling to continue particular conduct | Caller need not infer time-limited restrictions from generic language; revocation must be specific | Apply common-law Restatement standard: revocation occurs when actor knows or has reason to know recipient no longer consents |
| Whether Schweitzer’s October 13 statements constituted revocation for mornings/workday | Schweitzer argues her language sufficed to revoke consent for calls in the morning and during work hours | Comenity argues the phrases “the morning” and “during the work day” were too vague to constitute revocation | Reversed: factual dispute exists — reasonable jury could find Schweitzer partially revoked consent; summary judgment improper |
| Effect of FCC guidance rejecting limitations on revocation | Plaintiff: FCC recognizes consumers can revoke consent orally and does not preclude limited revocation | Defendant: FCC statement that revocation must “clearly express” desire not to receive further messages forecloses partial revocation | FCC ruling does not prohibit partial revocation; its language was not addressing partial-revocation issue and is not controlling here |
Key Cases Cited
- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (TCPA permits oral revocation of consent)
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013) (Restatement informs TCPA-consent analysis)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012) (purpose of TCPA: protect consumers from intrusive calls)
- Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir. 1983) (consent under wiretap statute can be limited)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (FCC’s “clearly expresses” standard reasonable for revocation)
- Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (greater power includes the lesser)
- Florida v. Jimeno, 500 U.S. 248 (1991) (Fourth Amendment permits delimiting the scope of consent)