Reyes v. Lincoln Automotive Financial Services
2017 U.S. App. LEXIS 11057
| 2d Cir. | 2017Background
- Reyes leased a Lincoln vehicle; the lease contained an express consent clause allowing Lincoln to call his cellular phone, including via automatic dialing and prerecorded messages.
- After Reyes defaulted on lease payments, Lincoln placed repeated calls (141 live-agent calls and 389 prerecorded calls).
- Reyes claims he mailed a June 14, 2013 letter revoking consent to calls; he produced a copy and gave sworn testimony, but Lincoln says it never received the letter.
- Reyes sued Lincoln under the Telephone Consumer Protection Act (TCPA) seeking statutory damages; the district court granted summary judgment for Lincoln.
- The district court held (1) Reyes failed to raise a triable issue that he revoked consent, and (2) even if he did, the TCPA does not allow unilateral revocation of consent that was given as consideration in a binding contract.
- The Second Circuit reviewed de novo, found a genuine factual dispute on revocation, but affirmed on the legal question that contractual, bargained-for consent is not unilaterally revocable under the TCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Reyes created a triable issue that he revoked consent to be called | Reyes testified and submitted an affidavit and a copy of a letter showing he mailed a revocation; a jury could credit that evidence | Lincoln says it never received the letter and points to inconsistencies in the evidence | Triable issue exists; summary judgment on factual revocation was improper (issue for jury) |
| Whether the TCPA permits unilateral revocation of consent given as bargained-for consideration in a contract | The TCPA’s remedial purpose and common-law meaning of "consent" support allowing revocation even where consent was given in a contract | Contract law principles bar one party from unilaterally altering a bargained-for contractual term; no indication Congress intended to change that | Held: Consent given as part of a binding contract is not unilaterally revocable under the TCPA |
Key Cases Cited
- Gager v. Dell Fin. Servs., 727 F.3d 265 (3d Cir. 2013) (held unilateral revocation of gratuitous prior express consent is permitted under the TCPA)
- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (adopted Gager, allowing revocation of voluntarily given consent)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (2012) (discussed TCPA’s consumer-protection purpose)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard; credibility determinations for jury)
- Neder v. United States, 527 U.S. 1 (1999) (courts presume Congress intended common-law meanings for terms)
- Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775 (2d Cir. 2003) (contract modification requires mutual assent)
- Atl. City Elec. Co. v. Gen. Elec. Co., 312 F.2d 236 (2d Cir. 1962) (policy concerns for statutory interpretation are for Congress)