Argued: April 4, 2017
Appeal
from the United States District Court for the Eastern
District of New York. No. 15 Civ. 560 - Leonard D. Wexler,
Judge.
Plaintiff-appellant
Alberto Reyes, Jr., appeals a judgment of the United States
District Court for the Eastern District of New York (Leonard
D. Wexler, J.). Judgment was entered following the
grant of summary judgment to the defendant-appellee, Lincoln
Automotive Financial Services ("Lincoln"), on
Reyes's claim for damages stemming from Lincoln's
alleged violation of the Telephone Consumer Protection Act
("TCPA"), Pub. L. No. 102-243, 105 Stat. 2394
(1991) codified at 47 U.S.C. § 227. Reyes
leased an automobile from Lincoln and, as a condition of the
lease agreement, consented to receive manual or automated
telephone calls from Lincoln. Lincoln called Reyes regularly
after he defaulted on his lease obligations, and continued to
do so after Reyes allegedly revoked his consent to be called.
Reyes sued for damages under the TCPA. The district court
granted summary judgment for Lincoln, on the basis that (1)
the evidence of consent revocation was insufficient, and (2)
in any event the TCPA does not permit revocation when consent
is provided as consideration in a binding contract. We hold
that (1) Reyes did introduce sufficient evidence from which a
jury could conclude that he revoked his consent, but that (2)
the TCPA does not permit a consumer to revoke its consent to
be called when that consent forms part of a bargained-for
exchange. We therefore AFFIRM the judgment of the district
court.
Yitzchak Zelman, Marcus & Zelman, LLC, Ocean, NJ, for
Plaintiffs-Appellees.
Jessica L. Ellsworth (Morgan L. Goodspeed, on the brief),
Hogan Lovells U.S. LLP, Washington, DC, for
Defendants-Appellants.
Before: Walker, Jacobs, and Parker, Circuit Judges.
JOHN
M. WALKER, JR., CIRCUIT JUDGE
Plaintiff-appellant
Alberto Reyes, Jr., appeals a judgment of the United States
District Court for the Eastern District of New York (Leonard
D. Wexler, J.). Judgment was entered following the
grant of summary judgment to the defendant-appellee, Lincoln
Automotive Financial Services ("Lincoln"), on
Reyes's claim for damages stemming from Lincoln's
alleged violation of the Telephone Consumer Protection Act
("TCPA"), Pub. L. No. 102-243, 105 Stat. 2394
(1991) codified at 47 U.S.C. § 227. Reyes
leased an automobile from Lincoln and, as a condition of the
lease agreement, consented to receive manual or automated
telephone calls from Lincoln. Lincoln called Reyes regularly
after he defaulted on his lease obligations, and continued to
do so after Reyes allegedly revoked his consent to be called.
Reyes sued for damages under the TCPA. The district court
granted summary judgment for Lincoln, on the basis that (1)
the evidence of consent revocation was insufficient, and (2)
in any event the TCPA does not permit revocation when consent
is provided as consideration in a binding contract. We hold
that (1) Reyes did introduce sufficient evidence from which a
jury could conclude that he revoked his consent, but that (2)
the TCPA does not permit a consumer to revoke its consent to
be called when that consent forms part of a bargained-for
exchange. We therefore AFFIRM the judgment of the district
court.
BACKGROUND
In
2012, Reyes leased a new Lincoln MKZ luxury sedan from a Ford
dealership.[1] Lincoln financed the lease. In his lease
application, Reyes provided several personal details,
including his cellular phone number. The lease itself
contained a number of provisions to which Reyes assented when
finalizing the agreement. One provision permitted Lincoln to
contact Reyes, and read as follows:
You [Reyes] also expressly consent and agree to Lessor
[Ford], Finance Company, Holder and their affiliates, agents
and service providers may use written, electronic or verbal
means to contact you. This consent includes, but is not
limited to, contact by manual calling methods, prerecorded or
artificial voice messages, text messages, emails and/or
automatic telephone dialing systems. You agree that Lessor,
Finance Company, Holder and their affiliates, agents and
service providers may use any email address or any telephone
number you provide, now or in the future, including a number
for a cellular phone or other wireless device, regardless of
whether you incur charges as a result.
At some
point after the lease was finalized, Reyes stopped making his
required payments. As a result, on multiple occasions,
Lincoln called Reyes in an attempt to cure his default.
Reyes
disputed his balance on the lease, and also claims that he
requested that Lincoln cease contacting him. Reyes asserts
that on June 14, 2013, he mailed a letter to Lincoln in which
he wrote: "I would also like to request in writing that
no telephone contact be made by your office to my cell
phone." Lincoln contends that it never received
Reyes's letter, or any other request to cease its calls.
At his deposition, Reyes testified to mailing the letter to
the P.O. box listed on Lincoln's invoices and produced a
copy of the letter that did not bear an address or postmark
and referenced an incorrect account number. Despite his
alleged revocation of consent, Lincoln continued to call
Reyes. Following the close of discovery, Lincoln's
attorney confirmed that Lincoln had called him 141 times with
a customer representative on the line, and had called him
with pre- recorded messages an additional 389 times.
On
February 6, 2015, Reyes filed a complaint against Lincoln in
the Eastern District of New York, alleging violations of the
TCPA and seeking $720, 000 in damages.[2] On June 20, 2016,
Judge Wexler granted summary judgment to Lincoln, holding
that (1) Reyes had failed to produce sufficient evidence from
which a reasonable jury could conclude that he had ever
revoked his consent to be contacted by Lincoln, and (2) that,
in any event, the TCPA does ...