On June 22, 2017, in Reyes v. Lincoln Automotive Financial Services, the U.S. Court of Appeals for the Second Circuit agreed with Hogan Lovells attorneys representing the defendant and held that the Telephone Consumer Protection Act (“TCPA”) does not permit a consumer to revoke her consent to be called when that consent forms part of a bilateral contract.  The Second Circuit’s precedent-setting decision, if adopted by other courts, may have far-reaching implications for how companies draft their contracts and service agreements and structure their TCPA compliance approaches.

The plaintiff in Reyes expressly agreed to receive autodialed calls and prerecorded messages as a term of his automobile lease agreement.  After the parties executed the agreement and the plaintiff began using the vehicle under the lease, the plaintiff stopped making the required lease payments.  When the lender placed calls to inquiry about and potentially help cure the delinquency, the plaintiff claimed he could revoke his consent to be called.  The plaintiff then filed suit under the TCPA.

The Second Circuit held that plaintiff’s consent was irrevocable because that consent was a term of the existing contractual agreement.  In reaching this conclusion, the court relied on a fundamental principle of contract law: mutual assent is required to revoke a term to a bilateral agreement. A party may not unilaterally modify a contract, as the plaintiff tried to do here.  The court found “no indication in the [TCPA’s] text that Congress intended to deviate from this common–law principle in its use of the word ‘consent.’”  Accordingly, the court found that plaintiff’s attempt to unilaterally rewrite the terms of the lease agreement was a legal nullity.