Lucoff v. Navient: Consent Revoked on the Phone, Restored Minutes Later on a Web Form

The bottom line: under common law consent principles, a later, clear written consent controls over an earlier oral revocation, even if only minutes separate them.

Background

Joel Lucoff, now an attorney, consolidated his federal law school loans in 2006. Navient Solutions, LLC serviced the loan, and its affiliate Student Assistance Corporation (SAC) provided default aversion services.

Navient pointed to several sources of consent. Lucoff was a member of the Arthur class action settlement, under which class members who did not submit revocation forms were "deemed to have provided prior express consent." In 2012, he also faxed an automatic debit form that expressly authorized autodialed and prerecorded calls to his cell phone.

On June 24, 2014, Lucoff called Navient. When a representative asked whether Navient could contact him at his cell number "using an auto-dialer or pre-recorded messages," he answered "No." While still on the line, he went to Navient's website to set up automatic payments. A form titled "Edit Your Contact Information" appeared, pre-filled with his cell number. Above the submit button, in the same size text as the rest of the form, it stated that by providing his number he authorized calls using "an automated dialing device" and "prerecorded messages." He submitted it.

The parties agreed that SAC made 1,549 calls and Navient made 418 calls to his cell phone using an automated device. Lucoff sued.

The decision

Judge Branch wrote for a panel with Judges Jordan and Jill Pryor. Assuming Lucoff revoked consent on the phone, the court held he reconsented through the web form. It did not decide whether the class settlement made his consent irrevocable, or whether Navient used an autodialer.

1. Common law consent applies. Words or conduct "reasonably understood by another to be intended as consent" are effective even if the person did not intend to consent. Navient reasonably understood the submitted form as consent.
2. Timing does not merge the events. The revocation test asks whether the caller knew or should have known consent was withdrawn. Lucoff cited no authority for treating the revocation and the later reconsent as one interaction.
3. The form was not misleading. The consent language sat above the submit button in normal size text. The cell number was not a mandatory field, and pre-filled information could be edited or deleted. Navient had his number only because he had provided it earlier.
4. No jury needed. The material facts were undisputed and the consent language was unambiguous, unlike the vague oral statement in Schweitzer v. Comenity Bank.

Why it matters

Lucoff shows how courts evaluate competing consent signals. The most recent clear expression controls. It also gives a practical template for online consent: language placed near the submit button, in readable text, with an optional and editable phone field.

Practical takeaways

1. Place consent language above the submit button, in the same size text as the form.
2. Do not make the cell number a required field if you want to rely on it as consent.
3. Keep timestamped records of every revocation and every consent.
4. Train agents to note revocations, and make sure those notes reach your dialing systems.

Clear design and good records won this case.

Read the Eleventh Circuit's opinion in Lucoff v. Navient Solutions.