Antitrust Law Daily Wrap Up, PRIVACY—D. Minn.: Express consent to receive autodialed calls from Target could be revoked, (Dec 15, 2015)

By Michael Menzhuber, J.D., LL.M.

The federal district court in Minneapolis denied a consumer’s motion for partial summary judgment in a Telephone Consumer Protection Act (TCPA) action against Target Corporation because there was a material issue of disputed fact as to whether the consumer revoked his consent to receive autodialed calls. The court also denied Target’s request for summary judgment because the consumer had the right to revoke consent and the right to do so did not affect the contractual relationship between the parties (Wright v. Target Corporation, December 14, 2015, Nelson, S.).

The consumer signed a Target joint account request and agreement, which included his consent to receive autodialed calls from Target or those acting on behalf of Target. He later began receiving autodialed calls from Target regarding an outstanding balance on that account. After repeatedly denying an obligation to pay the balance, he told a Target representative to cease calling until Target could provide legal verification of the debt. However, the calls continued.

The consumer filed suit, asserting a violation of the TCPA against Target. He then filed a motion for partial summary judgment in which he asserted that there were no disputed issues of material fact with respect to Target’s liability for calls made after he told Target to stop calling. In its motion for summary judgment, Target argued that the consumer could not revoke his prior express consent to receive the autodialed calls.

Revocation of prior express consent. After determining that both motions turned on the revocation of consent, the court noted that the Federal Communications Commission, in a declaratory ruling and order issued on July 20, 2015, determined that consumers have the right to revoke consent by any reasonable method including orally or in writing. The court also noted that the issue of retroactivity, with respect to the order, had not been addressed judicially.

However, the court did not find it necessary to address the issue of retroactivity because it independently concluded that revocation of consent was permissible under the TCPA. The basis for the court’s decision was that, because the TCPA is a remedial statute, any silence in the TCPA as to a revocation right should be interpreted in favor of the consumer.

Consent clause. The court determined that the consent term in the parties’ consent agreement to receive autodialed calls was not an integral and essential part of the bilateral written agreement, as argued by the Target, because the consumer’s unilateral revocation of consent did not alter the interest charges or late fees applicable to his Target account. Consequently, the court held that the particular form and manner in which Target could contact the consumer was not an essential part of the agreement.

However, whether the consumer effectively revoked his consent remained a disputed issue because: (1) his request to “cease calling” was conditioned upon Target providing proof that he owed a debt; and (2) Target representatives were not authorized to speak to his attorney absent a power of attorney on file.

The case is No. 14-cv-3031 (SRN/HB).

Attorneys: Mark T. Lavery (Hyslip & Taylor LLC LPA) for Sean Wright. Brian Melendez (Dykema Gossett PLLC) for Target Corporation.

Companies: Target Corporation

Cases: Privacy MinnesotaNews