Reyes v. Lincoln Automotive Financial Services: You Can't Revoke Consent You Signed Into a Contract

The lease and the calls

In 2012, Alberto Reyes leased a new Lincoln MKZ, which was financed by Lincoln Automotive Financial Services (a trade name of Ford Motor Credit). His lease included a clause expressly consenting to contact by "manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems," at any number he provided, including a cell phone.

Reyes became delinquent on his payments. He said he mailed a letter in June 2013 requesting that "no telephone contact be made by your office to my cell phone." Lincoln said it never got it. Lincoln went on to call him 141 times with a live representative and 389 more times with prerecorded messages. Reyes sued, seeking $720,000.

The Eastern District of New York granted summary judgment to Lincoln on two grounds: not enough evidence he revoked, and in any event, contractual consent can't be revoked.

What the Second Circuit held

Judge Walker wrote the panel opinion, joined by Judges Jacobs and Parker.

Revocation was a jury question. Reyes testified he mailed the letter, filed an affidavit saying so and produced a copy. The district court discounted the affidavit because he didn't remember the address and had no proof that he mailed the letter. The Second Circuit said that was a credibility call for a jury, not a judge on summary judgment.

But contractual consent is irrevocable. This is the big holding. The Third Circuit in Gager v. Dell Financial Services, the Eleventh Circuit in Osorio v. State Farm Bank and the Federal Communications Commission (FCC) in 2015 all held consent is revocable. The Second Circuit said those cases involved consent given freely and gratuitously, like listing a number on an application. That's tort-style consent, which you can withdraw.

Reyes's consent was different. It was an express term of a bilateral contract. Under the common law, consent can become irrevocable when it's part of a binding agreement, and one party can't change a contract term without the other's agreement. Congress is presumed to adopt common law definitions and there was nothing in the TCPA that suggested that they intended to change contract law.

The court rejected Reyes's other arguments:

1. It didn't matter that the calling clause wasn't an "essential term" of the lease. Parties are bound by all the terms they agree to.
2. The TCPA's remedial purpose doesn't help without an actual ambiguity, and the court found none in "consent."
3. Worries that businesses will put these clauses in every contract are a policy issue for Congress, not the courts.

Why this matters

In the Second Circuit, well-drawn consent clauses in a contract can survive even after a consumer says to stop contacting them. It's not a universal rule.

Practical points:

1. Make calling consent an express term of the agreement, covering autodialed, prerecorded and text contact.
2. Keep good records of any revocation requests anyway, since other circuits may not follow Reyes.
3. Consumers should read the fine print before signing.

Read the Second Circuit's amended opinion in Reyes v. Lincoln Automotive Financial Services.