Oral Revocation of Consent Insufficient Where Contract Required Writing

TCPA Connect

Where a contract required written revocation of consent to be contacted, a consumer’s attempt to orally revoke consent failed, according to an Ohio federal court.

As part of the cardholder agreement between Carlton Barton and Credit One Bank, Barton provided his explicit consent to be contacted on his cellphone number in any way (such as prerecorded message, autodialer or text message).

In July 2016, Credit One began calling Barton about an outstanding balance owed on the account. He claimed that during one of the phone calls, he revoked his consent by telling the representative not to call him anymore. Barton’s lawyer sent a letter revoking his consent in writing in September 2016, and Credit One placed a cease-and-desist flag on his account and did not contact him after Sept. 29, 2016.

Barton filed a lawsuit alleging Credit One violated the Telephone Consumer Protection Act (TCPA) when it called his cellphone, arguing that he did not give express written consent to be contacted by the company and, even if he had, he subsequently revoked that consent. The defendant responded with a motion for summary judgment, which U.S. District Judge Donald C. Nugent granted.

The plaintiff provided his cellphone number to the defendant when he filled out his application form and “‘a party who gives an invitation or permission to be called at [a certain] number’ has given ‘prior express consent’ to be contacted,” the court said.

“Furthermore, the terms of the Cardholder Agreement make it clear that Mr. Barton, by knowingly and voluntarily providing his cell phone number as part of the application, provided his prior express consent to be contacted. Therefore, there is no genuine issue of material fact that the information Mr. Barton provided in the application for the credit card issued by Credit One, as well as the use of the credit card, constituted the prior express consent required in order for Credit One to contact Mr. Barton via telephone to pursue a debt.”

Barton’s fallback argument—that he revoked his consent by asking a Credit One agent to stop calling him—also failed because of the cardholder agreement. The contract provided:

COMMUNICATION REVOCATION: If you do not want to receive communications as described [herein], you must (i) provide us with written notice revoking your prior consent, (ii) in that written notice, you must include your name, mailing address, and the last four digits of your Account number … (iv) if you are requesting communications to cease via telephone(s) and/or email, please provide the specific phone number(s) and email address.

Credit One received written correspondence from Barton’s attorney in September 2016 that adhered to the revocation language found in the agreement, and the company flagged the account so that no further calls were made to Barton, the court noted.

“The revocation clause within the Cardholder Agreement is valid and enforceable, and Mr. Barton cannot unilaterally alter the terms of the agreement to claim that his oral revocation of consent was valid,” Judge Nugent wrote. “[T]he TCPA ‘does not permit a consumer who agrees to be contacted by telephone as part of a bargained-for transaction to unilaterally revoke that consent.’”

With no genuine issue of material fact that Barton sufficiently revoked his consent prior to Sept. 29, 2016, when Credit One stopped making calls to his cellphone, the court granted the defendant’s motion for summary judgment.

To read the memorandum opinion in Barton v. Credit One Financial, click here.

Why it matters: The defense-friendly verdict emphasized that Barton was obligated to abide by the terms of his agreement in order to revoke his consent and thus was required to do so in writing. The court ruled that Barton’s attempt to revoke consent orally amounted to an impermissible attempt to unilaterally change the terms of the agreement to permit oral revocation, quoting last year’s U.S. Court of Appeals, Second Circuit opinion in Reyes v. Lincoln Automotive Financial Services. This decision further bolsters the notion identified in ACA International that parties may contractually agree to specific methods of revocation.



pursuant to New York DR 2-101(f)

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