Opinion
CASE NO. 18-CIV-60743-RAR
08-07-2019
Joel D. LUCOFF, Plaintiff, v. NAVIENT SOLUTIONS, LLC, et al., Defendants.
ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION
THIS CAUSE comes before the Court upon Magistrate Judge Chris McAliley's Report and Recommendations on Cross-Motions for Summary Judgment and Order on Motion to Strike [ECF No. 73] ("Report"), filed on May 28, 2019. On June 11, 2019, Plaintiff filed an Objection to the Report [ECF No. 77] ("Objection"), and Defendants filed a Response to Plaintiff's Objection [ECF No. 78] ("Response") on June 25, 2019. Plaintiff did not file a reply to Defendants' Response. The Report recommends the undersigned grant Defendants' Motion for Summary Judgment [ECF No. 21] and deny Plaintiff's Motion for Summary Judgment [ECF No. 24]. Because Plaintiff filed an objection to the Report, the Court reviews the Report de novo . FED. R. CIV. P. 72(b)(3). Having reviewed the Report, Defendants' Motion for Summary Judgment, Plaintiff's Motion for Summary Judgment, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that the Report [ECF No. 73] is hereby AFFIRMED AND ADOPTED as set forth herein.
BACKGROUND
Defendant, Navient Solutions LLC ("Navient"), is a loan service provider formerly known as Sallie Mae, Inc. Highfield Aff. [ECF No. 23-1] ¶¶ 4, 14; Compl. ¶ 7. Defendant Student Assistance Corporation ("SAC") is an affiliate of Navient that presents repayment plans to borrowers whose loans are delinquent. Campbell Aff. [ECF No. 23-2] ¶¶ 5-8, 11. Navient and SAC share technology services, including a platform that stores borrowers' consents for receiving automated calls. See Defs.' Statement of Undisputed Material Facts in Support of Defs.' Mot. Summ. J. [ECF No.22], Pl.'s Opposition to Defs.' Statement of Undisputed Material Facts [ECF No. 45] (collectively, "Defs. SOMF") ¶ 8.
As required by Local Rule 56.1, the parties followed the same numbering scheme in their respective Statement of Undisputed Material Facts and Opposition thereto. Therefore, each citation to specific numbered paragraph(s) corresponds to the respective Statement of Undisputed Material Fact and Opposition.
Plaintiff obtained various student loans to fund his law school education. See Pl. Dep. [ECF No. 23-4] 35:16-25. On August 2, 2006, Plaintiff signed a Federal Family Education Loan Program ("FFELP") Federal Consolidation Loan Application and Promissory Note (the "Application"). See Defs. SOMF ¶ 12; see also Highfield Aff. ¶ 8; FFELP Application [ECF No. 23-1-A]. Plaintiff was approved for an FFELP loan, and it was disbursed approximately one month later. Highfield Aff. ¶ 9. It is undisputed that Navient is the servicer of Plaintiff's FFELP loan. See Defs. SOMF ¶ 15.
A. Arthur Settlement
In Arthur, et al. v. Sallie Mae, Inc. , borrowers brought a class action lawsuit alleging that Sallie Mae Inc. violated the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. section 227 et seq. , by placing telephone calls with an automated dialing system and/or artificial prerecorded voice without the prior consent of the borrowers and other similarly situated individuals. See generally Am. Settlement Agreement [ECF No. 23-3-B] ("Arthur Settlement"). The Arthur plaintiffs and Sallie Mae and all of its affiliates or subsidiaries, both current and prospective (collectively, "Sallie Mae") entered into a settlement agreement where Sallie Mae agreed, "as full and complete consideration" to implement "prospective practice changes" and contribute monetary relief. Id. at 9.
No. C10-0198-JLR filed in the United States District Court for the Western District of Washington.
The TCPA prohibits: (1) "use of an automatic telephone dialing system[,] ... without the prior express consent of the called party, to call any ... cellular telephone, or other service for which the receiver is charged for the call"; (2) use of "artificial or prerecorded voice messages to call residential telephone lines without prior express consent"; (3) "sending unsolicited advertisements to fax machines"; and (4) "automatic telephonic dialing systems to engage two or more of a business' telephone lines simultaneously." Mims v. Arrow Fin. Servs., LLC , 565 U.S. 368, 373, 132 S.Ct. 740, 181 L.Ed.2d 881 (2012). A successful plaintiff may be entitled to actual damages or $500 for each violation, whichever is greater. Id. "Damages may be trebled if ‘the defendant willfully or knowingly violated’ the [TCPA]." Id.
With respect to "practice changes," Sallie Mae agreed not to use, or knowingly authorize someone acting on its behalf to make use of, "an automated dialing system and/or artificial or prerecorded voice, to contact the cellular telephones of Settlement Class Members who have made or will make a valid and timely Revocation Request." Id. at 9. Sallie Mae also agreed to give all class members clear instructions on how to make a valid and timely Revocation Request and direct claimants to the agreed upon form. Id. at 10-11. If a settlement class member did not submit a valid and timely Revocation Request the settlement class member was "deemed to have provided prior express consent" to Sallie Mae to make calls (as defined in the TCPA) to any phone number(s) reflected in the entities' records and any other "request for a revocation will be invalid." Id. at 11. The parties do not dispute that the opportunity to submit a Revocation Request was a form of consideration for the Arthur Settlement. Defs. SOMF ¶ 8.
A "Revocation Request" is "a valid and timely request ... by a Settlement Class Member not to receive Calls through use of an automated dialing system and/or an artificial or prerecorded voice on a specific cellular telephone number provided to any of the Released Parties." Id. at 7.
The following facts are undisputed. As a recipient of an FFLEP loan, Plaintiff is an Arthur class member. Id. at ¶ 34. On April 14, 2012, Plaintiff was given notice of the Arthur Settlement and instructions on how to complete a Revocation Request. Id. ; see also Kierkegard Aff. [ECF No. 23-3] ¶ 5. Plaintiff failed to opt out of the Arthur settlement and failed to submit a Revocation Request. Defs. SOMF ¶ 34; see also Kierkegard Aff. ¶¶ 6-8. By failing to submit a Revocation Request, Plaintiff expressly consented to receive automated calls from Sallie Mae. Defs. SOMF ¶ 34.
B. Loan Consolidation and Alleged Revocation of Consent
On June 24, 2014 (two years after receiving notice of the Arthur settlement), Plaintiff contacted Navient to discuss a settlement offer for his FFLEP loan. Defs. SOMF ¶ 19; Pl.'s Statement of Undisputed Material Facts in Support of Pl.'s Mot. Summ. J. [ECF No.25], Defs.' Opposition to Pl.'s Statement of Undisputed Material Facts [ECF No. 34] (collectively, "Pl. SOMF") ¶ 12. During this communication, a Navient representative and Plaintiff had the following undisputed exchange:
As required by Local Rule 56.1, the parties followed the same numbering scheme in their respective Statement of Undisputed Material Facts and Opposition thereto. Therefore, each citation to specific numbered paragraph(s) corresponds to the respective Statement of Undisputed Material Fact and Opposition.
Q: Is this your cell phone number, xxx-xxx-0907?
A: That is correct.
Q: Well, to help contact you more efficiently, may Sallie Mae Bank and Navient and their respective subsidiaries, affiliates, and agents contact you at this number?
A: Sure.
Q: Using an auto-dialer or pre-recorded messages regarding your current or future accounts?
A: No.
Q: Yes or no?
A: No.
Transcript of Call on June 24, 2014 [ECF No. 28-4]; Defs. SOMF ¶ 20. The parties do not dispute that Plaintiff attempted to revoke his prior express consent by answering "no" during this telephone conversation. Id.
Shortly after Plaintiff answered "no" to the Navient representative, Plaintiff accessed Navient's website to complete an auto debit agreement. Defs. SOMF ¶ 21; Highfield Aff. ¶¶ 12-13; Pl. Dep. 83: 7-10. Before accessing the auto debit agreement, Plaintiff was prompted with a demographic page requesting Plaintiff to update and/or confirm his contact information. Pl. Dep. 75:2-8; Highfield Aff. ¶ 13; see also Website Screenshot [ECF No. 23-1-C]. If no changes were needed, Plaintiff was directed to submit his demographic information. See Website Screenshot. Because Plaintiff had already provided his contact information to Navient in the past, his information automatically populated into the demographics page. Pl. Dep. 76:4-11. Although some contact information was required by Navient to proceed to the auto debit form, Plaintiff was not required to provide a cell phone number. See Website Screenshot ("Required fields are marked with (*).") (emphasis omitted). It is undisputed Plaintiff saw his telephone number, but Plaintiff did not delete it. Defs. SOMF ¶ 25. Below Plaintiff's telephone number, the demographics page contained the following language:
By providing my telephone number, I authorize SLM Corporation, Sallie Mae Bank, Navient Corporation and Navient Solutions, Inc., and their respective subsidiaries, affiliates and agents, to contact me at such number using any means of communication, including, but not limited to, calls placed to my cellular phone using an automated dialing device, calls using prerecorded messages and/or SMS text messages , regarding any current or future loans owned or serviced by SLM Corporation, Sallie Mae Bank, Navient Corporation or Navient Solutions, Inc., or their respective subsidiaries, affiliates and agents, even if I will be charged by my service provider(s) for receiving such communications.
See Website Screenshot (emphasis added); see also Pl. Dep. 77:2-23. The parties agree that Plaintiff saw the above-mentioned language. Pl. Dep. 78:3-5. It is also undisputed that Plaintiff "clicked through" the demographics page by submitting it to Navient with the above authorization. Defs. SOMF ¶ 26; Pl. Dep. 84: 8-11; Highfield Aff. ¶ 13. The parties also agree that Plaintiff did not attempt to revoke his consent after submitting the contact information. Defs. SOMF ¶ 27; Highfield Aff. ¶ 16.
After submitting the demographics page and eventually completing the auto debit form, Plaintiff submitted payments by automatic debit for the months of September, October, and November. Highfield Aff. ¶ 17. However, "each of these payments were returned due to a stop payment issued by Plaintiff's financial institution." Id. Because Plaintiff's payments were returned, Plaintiff's FFLEP loan became delinquent prompting Navient and SAC to contact Plaintiff. Id. at ¶ 18. It is undisputed that SAC called Plaintiff's cellular phone 1,549 times with an automated device and Navient called Plaintiff's cellular phone 418 times with an automated device. Pl. SOMF ¶ 6.
The parties do dispute whether the automatic device Naivent used to contact Plaintiff was an "automatic telephone dialing system" as defined by the TCPA.
C. Procedural History
On April 6, 2018, Plaintiff filed a Complaint against Defendants [ECF No. 1] for allegedly violating the TCPA by using an automatic telephone dialing system or pre-recorded or artificial voice to contact Plaintiff on his cellular telephone. Compl. ¶¶ 1, 17. Plaintiff claims Defendants left "hundreds of pre-recorded telephone messages on [his] cellular telephone ... in an effort to collect or service a student loan." Compl. ¶¶ 10-11. On February 8, 2019, Plaintiff and Defendants filed cross Motions for Summary Judgment and their respective Statements of Undisputed Facts. Plaintiff and Defendants filed Responses in Opposition [ECF Nos. 33, 44,], and only Defendants filed a Reply in Support of their Motion for Summary Judgment [ECF No. 49].
Defendants maintain that Plaintiff provided his express consent as consideration for the Arthur Settlement when he failed to opt out of the class action and failed to submit a valid and timely Revocation Request. Defs. Mot. Summ. J. at 8. Consequently, Defendants argue that Plaintiff cannot unilaterally revoke his consent, and any attempt to revoke his consent was ineffective. And even if Plaintiff could revoke his consent, Defendants argue that Plaintiff reconsented by submitting the demographic page to Defendants. Id. at 8-9, 11.
Defendants also argue that their calls are not actionable under the debt-collection exemption to the TCPA because they were made "solely to collect a debt owed to or guaranteed by the United States."
LEGAL STANDARD
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge, Inc. , 117 F.3d 1278, 1285 (11th Cir. 1997) (citation omitted), and "must resolve all reasonable doubts about the facts in favor of the non-movant," United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am. , 894 F.2d 1555, 1558 (11th Cir. 1990) (citation omitted). "The mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case." Chapman v. AI Transport , 229 F.3d 1012, 1023 (11th Cir. 2000). A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor." Id.
The movant's initial burden on a motion for summary judgment "consists of a responsibility to inform the court of the basis for its motion and to identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993) (alterations and internal quotation marks omitted) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has shouldered its initial burden, the burden shifts to the non-moving party to " ‘set forth specific facts showing that there is a genuine issue for trial,’ not just to ‘rest upon the mere allegations or denials of the adverse party's pleading.’ " United States v. Lawrence , 276 F.3d 193, 197 (5th Cir. 2001) (quoting Resolution Trust Corp. v. Camp , 965 F.2d 25, 29 (5th Cir. 1992) ).
ANALYSIS
The parties do not dispute that Plaintiff attempted to revoke his consent on June 24, 2014. The parties merely dispute whether Plaintiff's attempt effectively revoked his prior express consent. The Court finds that Plaintiff's bargained-for consent cannot be unilaterally revoked because it was given as consideration for a bargained-for exchange. And nonetheless, Plaintiff reconsented to Defendants contacting him through means otherwise prohibited by the TCPA when he submitted his demographic information to Navient. Consequently, Defendants did not violate the TCPA as a matter of law, and summary judgment must be granted in favor of Defendants.
Because the Court finds Defendants did not violate the TCPA as a matter of law, it need not determine whether Defendants' calls to Plaintiff were exempt under the federal debt-collection exemption provided in the TCPA.
A. Bargained-For Consent
In Osorio v. State Farm Bank, F.S.B. , the Eleventh Circuit juxtaposed the TCPA's revocation procedure against the writing requirement under the Fair Debt Collection Practices Act. 746 F.3d 1242, 1255 (11th Cir. 2014). The court concluded that the TCPA did not "impose a similar in-writing requirement[,]" and therefore, presumed Congress intended to adopt the common law concept of consent and revocation. Id. Under common law, oral revocation of consent was generally permitted. Id. Consequently, the court concluded that "in the absence of any contractual restriction to the contrary ," oral revocation was permitted. Id. (emphasis added).
A year after the Eleventh Circuit's decision in Osorio , the Federal Communications Commission ("FCC") issued a decision clarifying the consent requirement and a consumers' ability to revoke consent under the TCPA. See generally In the Matter of Rules & Regulations Implementing the Tel. Consumer Pro. Act of 1991 , 30 F.C.C. Rcd. 7961, 7994-7999 (hereinafter, " 2015 FCC Ruling"). The FCC determined that the "most reasonable interpretation of consent is to allow consumers to revoke consent if they decide they no longer wish to receive voice calls or texts ... in any reasonable manner that clearly expresses his or her desire not to receive further calls." Id. at 7993-94, 7999.
Almost three years after the 2015 FCC Ruling, the District of Columbia Circuit Court of Appeals reviewed the 2015 FCC Ruling with Chevron deference. See ACA Int'l v. FCC , 885 F.3d 687, 694-95 (D.C. Cir. 2018). There, the court affirmed the FCC's decision to allow consumers to "revoke consent at any time and through any reasonable means" and the prohibition against callers unilaterally designating "acceptable means of revocation." Id. at 694, 709. However, the D.C. Circuit highlighted the narrow applicability of the 2015 FCC Ruling, finding that it "does not address revocation rules mutually adopted by contracting parties." Id. at 710 ; see also Reyes v. Lincoln Automotive Fin. Servs. , 861 F.3d 51, 56 (2d Cir. 2017) (noting the 2015 FCC Ruling and Osorio considered only whether a "consumer who has freely and unilaterally given his or her informed consent can be contacted [and] later revoke that consent[,]" not whether a consumer can revoke consent given as "bargained-for consideration in a bilateral contract"). Accordingly, the 2015 FCC Ruling does not apply in circumstances where the consumer has given consent as consideration in a bargained-for contract.
Because the 2015 FCC Ruling does not apply in situations where the consumer gives consent as part of a contract and the TCPA is otherwise silent, the Second Circuit resolved this issue by relying on common law. In Reyes , the Second Circuit found that under common law, it was "clear that consent to another's action can ‘become irrevocable’ when it is provided in a legally binding agreement, in which case any ‘attempted termination’ is not effective." 861 F.3d at 57 (citations omitted). There, the Second Circuit found consent given as part of a lease agreement was not gratuitous, and therefore, the consent was irrevocable. Id. ; see also Rodriguez v. Student Assistance Corporation , No. 17-01577, 2017 WL 11050423, at *3 (E.D.N.Y. Nov. 6, 2017) (determining that consent given as consideration in the Arthur Settlement is binding and cannot be unilaterally revoked).
Additionally, the Second Circuit did not find the "consent" term under the TCPA to be ambiguous. Id. at 58. Consequently, it declined to apply the remedial rule of statutory interpretation, which would have required the court to liberally read the statute to further Congress' purpose. Id. Rather, the Second Circuit determined it was "well-established" that consent could become irrevocable in a binding contract at the time Congress enacted the TCPA. And there was "no indication in the statute's text that Congress intended to deviate from this common law principle." Id.
The Eleventh Circuit has yet to decide whether consent given as consideration for a bargained-for exchange may be unilaterally revoked. However, several sister district courts have tackled this issue. In Medley , the consumer signed an agreement with Dish Network containing a consent provision for Dish (and any other affiliated debt collecting agency) to contact the consumer by an automatic or predictive dialing system to discuss any outstanding debt. 2018 WL 4092120 at *1. Because the consumer provided her telephone number in a contract for services as opposed to an application or gratuitously, the court determined the consumer was unable to unilaterally revoke her consent for Dish or its affiliates to contact the consumer. Id. at *11.
See, e.g., Medley v. Dish Network, LLC , No. 16-2534, 2018 WL 4092120, at *9-10 (M.D. Fla. Aug. 27, 2018) ; Patterson v. Ally Fin., Inc. , 2018 WL 647438, at *4-5 (M.D. Fla. Jan. 21, 2018) ; Target Nat'l Bank v. Welch , No. 15-61436, 2016 WL 1157043, at *4-5 (M.D. Fla. Mar. 24, 2016).
In Patterson , the consumer signed a financing application containing a provision permitting the car dealer (or any other assignee) to make telemarketing calls. 2018 WL 647438, at *1. The consumer also simultaneously signed a retail installment contract requiring any changes to the contract to be made by the dealer and in writing. Id. After the consumer fell behind on payments, representatives of the assignee began contacting the consumer to collect the debt owed. Id. The court determined the consumer's prior consent did not include communications to satisfy delinquent obligations—the consumer only consented to telemarketing calls. Id. at 5. Consequently, the court found the calls made to the consumer were outside the scope of the contract. And because the TCPA otherwise permits oral revocation, the court found the consumer could orally revoke his consent to be contacted, despite providing his telephone number on an application and the contract prohibiting oral changes. Id. ; see also Target Nat'l Bank , 2016 WL 1157043 at *1 (finding the consumer's consent was revocable because the credit card application did not include a provision precluding revocation).
Here, it is undisputed that Plaintiff is an Arthur class member who received notice of the Arthur Settlement and the procedure to timely submit a Revocation Request. The parties agree that the failure to submit a Revocation Request provided Sallie Mae with express consent to contact Plaintiff by means otherwise prohibited by the TCPA. It is also undisputed that the Revocation Request was a form of consideration for the Arthur Settlement. Because this case involves consent given as part of a bargained-for exchange, it falls outside the applicability of the 2015 FCC Ruling.
Plaintiff argues that the Revocation Request has no bearing on future revocations. Specifically, Plaintiff claims the Arthur Settlement did not address the issue of future revocation nor did the Arthur Settlement make the "deemed consent" irrevocable. The Court disagrees. The Arthur Settlement specifically stipulates that if a class member "failed or fails to fully and accurately complete a Revocation Form, ... the request for a revocation will be invalid." Arthur Settlement at 11. Therefore, the Arthur Settlement sufficiently accounted for future revocations and in fact, explicitly invalidated untimely Revocation Requests.
Because the Arthur Settlement places contractual restrictions on revocation, Plaintiff's reliance on Osorio is erroneous. In Osorio , the court determined that consumers were "free to orally revoke any consent previously given" only "in the absence of any contractual restriction to the contrary." Here, the Court has determined that the Arthur Settlement specifically restricted a class member's ability to unilaterally revoke their prior express consent. Therefore, the Eleventh Circuit's decision in Osorio is inapplicable.
Plaintiff's situation is most analogous to the consumer in Medley as opposed to Patterson . As the consumer in Medley , Plaintiff gave his express consent as part of a bargained-for exchange when it failed to either opt out of the Arthur Settlement or timely submit a Revocation Request. Unlike the telemarketing calls in Patterson , Plaintiff specifically consented to receive autodialed and prerecorded calls to his cellular telephone from Defendants. And unlike the credit application in Target Nat'l Bank , the Arthur Settlement specifically invalidated any requests for revocation not properly made by a valid and timely Revocation Request.
The Court is also persuaded by the Reyes decision and the Rodriguez decision. Under common law, Plaintiff's consent was irrevocable, and any attempt to revoke his prior consent was ineffective because the consent given was consideration for the Arthur Settlement. Therefore, Plaintiff answering "no" to the Navient representative was an ineffective attempt to revoke his prior express consent. Consequently, Defendants did not violate the TCPA as a matter of law when they contacted Plaintiff using autodialed and prerecorded calls.
B. Reconsent
Nonetheless, even if Plaintiff effectively revoked his prior express consent, Plaintiff reconsented when he submitted the demographics page, which included a consent provision. Plaintiff argues his submission of the demographics page did not trigger the consent provision because he did not provide his telephone number—it was auto-populated. Plaintiff also claims the direction to submit the demographics page if no changes were needed was misleading and confusing because it did not direct the reader to the consent language or indicate that by clicking submit the reader also consented to autodialed and prerecorded calls.
It is undisputed that Plaintiff submitted the demographics page after telling the Navient representative he did not wish to receive autodialed or prerecorded calls. The parties agree that Plaintiff saw his telephone number on the contact information form. It is also clear from the Website Screenshot that Plaintiff's cellular telephone number was not a required field, and therefore, Plaintiff could have removed it before submitting the demographics page.
There is no dispute that Plaintiff saw the consent language on the demographics page before submitting it to Navient. Moreover, the consent provision is not ambiguous. It unequivocally states that Sallie Mae (and Navient specifically) may contact the Plaintiff using automated dialing devices and prerecorded messages.
Because Plaintiff did not delete his telephone number before submitting his demographic page and Plaintiff saw the unambiguous consent provision, Plaintiff reconsented to Defendants contacting him using autodialed and prerecorded phone calls. Therefore, this Court affirms and adopts Magistrate Judge McAliley's finding that Defendants did not violate the TCPA as a matter of law, even if Plaintiff effectively orally revoked his consent during his communication with the Navient representative.
CONCLUSION
Because Plaintiff is an Arthur class member who failed to opt of the Arthur Settlement and failed to timely submit a Revocation Request, Plaintiff cannot unilaterally revoke his prior express consent given as consideration for the Arthur Settlement. And even if Plaintiff could revoke his consent, Plaintiff reconsented when he submitted his demographics page with an unambiguous consent provision and his phone number. Because at all times Defendants had Plaintiff's prior express written consent, the Court finds that the Defendants did not violate the TCPA as a matter of law. Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The Report [ECF No. 73] is hereby AFFIRMED AND ADOPTED .
2. Defendants' Motion for Summary Judgment [ECF No. 21] is GRANTED .
3. Plaintiff's Motion for Summary Judgment [ECF No. 24] is DENIED .
4. Pursuant to Rule 58 of the Federal Rules of Civil Procedure, a Final Judgment will be entered by separate order.
DONE AND ORDERED in Fort Lauderdale, Florida this 7th day of August, 2019.
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR SUMMARY JUDGMENT AND ORDER ON MOTION TO STRIKE
CHRIS McALILEY, UNITED STATES MAGISTRATE JUDGE
This is an action for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA). Plaintiff Joel D. Lucoff and Defendants Navient Solutions, LLC ("Navient") and Student Assistance Corporation ("SAC") have filed cross-motions for summary judgment. (ECF Nos. 21, 24). The Motions have been referred to me for a report and recommendation, and are fully briefed. (ECF Nos. 22, 23, 25, 26, 27, 28, 30, 33, 34, 35, 44, 45, 46, 49, 50, 54). I have carefully considered the parties' memoranda of law, the pertinent portions of the record and the applicable law. For the reasons set forth below, I recommend that the Court grant Defendants' Motion for Summary Judgment and deny Plaintiff's Motion.
I. BACKGROUND
Plaintiff obtained various student loans to pay for his law school education. (ECF Nos. 22, 45 at ¶ 11). In 2006, Plaintiff signed a Federal Family Education Loan Program ("FFELP") Federal Consolidation Loan Application and Promissory Note. (Id. at ¶ 12). Navient is a servicer of student loans, and SAC is engaged in default aversion assistance for the guarantors of student loans made under the FFELP. (Id. at ¶¶ 1, 4). Navient and SAC are affiliates, (ECF Nos. 25, 34 at ¶ 19), and share technology services, which includes the system that stores borrowers' consents for receiving automated calls. (ECF Nos. 22, 45 at ¶ 8). If a borrower consents to be called, both Navient and SAC have access to that information. (Id. at ¶ 9).
As required by Local Rule 56.1, the parties followed the same numbering scheme in their respective Statement of Undisputed Material Facts and Opposition thereto. Therefore, each citation to the factual record is to the parties' respective Statement and Opposition, along with the relevant numbered paragraph(s).
In July 2012, Plaintiff signed an Automatic (Electronic) Debit Authorization form, and listed his cellular telephone number therein, which he sent to SAC. (Id. at ¶ 15). The Automatic Debit Authorization form contained the following language:
I, the Bank Account Holder, authorize Sallie Mae, and its agents or assigns, to communicate with me in connection with this Automatic Debit Authorization or any of the Customer's current or future loans being serviced by Sallie Mae using any telephone number that I provide to Sallie Mae in this Authorization or in the future, even if such telephone number is associated with a cellular telephone. I authorize Sallie Mae to communicate with me using automated telephone dialing equipment and/or artificial or pre-recorded voice messages.
(ECF No. 23-2 at 8). Plaintiff does not dispute that this form constitutes his express consent to receive automated calls from Defendants; the only dispute is whether Plaintiff could later revoke that consent. (ECF No. 45 at ¶¶ 15-18).
Shortly thereafter, in September 2012, the United States District Court for the Western District of Washington in Mark A. Arthur, Cirilo Martinez, Pari Najafi, and Heather McCue v. Sallie Mae, Inc. , Case No. C10-0198 JLR, entered a Settlement Order and Final Judgment approving a class action settlement (the "Arthur Settlement"). (ECF Nos. 22, 45 at ¶ 34; 23-3 at 50-57). Plaintiff is an Arthur Settlement class member. (ECF Nos. 22, 45 at ¶ 34).
The complaint in Arthur alleged that Sallie Mae and/or other affiliates or subsidiaries of SLM Corporation violated the TCPA by placing calls to cellular telephones through the use of an automated dialing system and/or an artificial prerecorded voice without the prior express consent of the Arthur plaintiffs and putative class members. (ECF No. 23-3 at 9-10). Sallie Mae agreed, "as full and complete consideration" for the Amended Arthur Settlement Agreement, to implement "prospective practice changes" and contribute monetary relief. (Id. at 17). In particular, the Amended Arthur Settlement Agreement provides that:
Neither Sallie Mae nor any other affiliate or subsidiary of SLM Corporation shall make use of, nor knowingly authorize anyone acting on its/their behalf to make use of, an automated dialing system and/or artificial or prerecorded voice, to contact the cellular telephones of Settlement Class Members who have made or will make a valid and timely Revocation Request .
(ECF No. 23-3 at 17) (emphasis supplied). The possibility of submitting a Revocation Request was a form of consideration provided in the Arthur Settlement. (ECF No. 23-3 at p. 3, ¶ 8). Plaintiff was given notice of the Arthur Settlement, but did not opt out of the Settlement and or submit a Revocation Request. (ECF Nos. 22, 45 at ¶¶ 34-35; 23-3 at p. 3, ¶¶ 5-8). The Amended Arthur Settlement Agreement specifies the consequences of failing to submit a Revocation Request. In particular, it states that:
Any Settlement Class Member who has not submitted or does not submit
a valid and timely Revocation Request will be deemed to have provided prior express consent to the making of Calls by Sallie Mae or any other affiliate or subsidiary of SLM Corporation to any phone numbers reflected in such entities' records.
(ECF No. 23-3 at 19) (emphasis supplied). Plaintiff does not dispute that he provided his express consent to receive automated calls from Defendants via the Arthur Settlement. Again, the only dispute is whether Plaintiff could revoke that consent. (ECF No. 45 at ¶¶ 34-35).
Between June 24, 2014 and April 6, 2018, Navient placed 418 calls and SAC placed 1,700 calls to Plaintiff's cellular telephone number regarding Plaintiff's student loans. (ECF Nos. 45, 50 at ¶¶ 48, 52). Plaintiff has retained recordings of 2 pre-recorded voicemails he received on his cellular telephone from Navient, and 20 pre-recorded voicemails he received on his cellular telephone from SAC. (Id. at ¶¶ 42, 44).
On June 24, 2014, Plaintiff called Navient regarding his consolidated federal student loan. (ECF Nos. 22, 45 at ¶ 19). At the beginning of the telephone call, a Navient representative and Plaintiff had the following exchange:
Q: Is this your cell phone number, xxx-xxx-0907?
A: That is correct.
Q: Well, to help contact you more efficiently, may Sallie Mae Bank and Navient and their respective subsidiaries, affiliates, and agents contact you at this number?
A: Sure.
Q: Using an auto-dialer or pre-recorded messages regarding your current or future accounts ?
A: No .
Q: Yes or no ?
A: No .
(ECF Nos. 22, 45 at ¶¶ 20-21; 30-1 at 18) (emphasis supplied).
A few minutes later, Plaintiff accessed Navient's website for purposes of completing an auto debit agreement to make payments towards his student loans. (ECF Nos. 22, 45 at ¶ 21). When Plaintiff accessed his online account on Navient's website, his demographic information appeared on a contact information form that asked the customer to "[u]se this form to update and/or verify any part of your contact information. Required fields are marked with (*). " (ECF No. 23-1 at 20) (emphasis in original). Plaintiff's cellular telephone number was already filled in (i.e., auto-populated) on the form. (ECF Nos. 25, 34 at ¶ 15). The field for Plaintiff's cellular telephone was not marked with an asterisk and, thus, was not a required field. (ECF No. 23-1 at 20).
A few lines below Plaintiff's cellular telephone number was the following language:
By providing my telephone number, I authorize SLM Corporation, Sallie Mae Bank, Navient Corporation and Navient Solutions, Inc., and their respective subsidiaries, affiliates and agents, to contact me at such number using any means of communication, including, but not limited to, calls placed to my cellular phone using an automated dialing device, calls using prerecorded messages and/or SMS text messages , regarding any current or future loans owned or serviced by SLM Corporation, Sallie Mae Bank, Navient Corporation or Navient Solutions, Inc., or their respective subsidiaries, affiliates and agents, even if I will be charged by my service provider(s) for receiving such communications.
(ECF No. 23-1 at 21) (emphasis supplied). Immediately below this authorization was a button labeled "Submit," which Plaintiff clicked. (ECF Nos. 22, 45 at ¶¶ 24, 26). Prior to clicking "Submit," Plaintiff saw his cellular telephone number on the form and did not remove it. (ECF Nos. 22, 45 at ¶ 25). Since submitting his contact information form, Plaintiff has not attempted to revoke his consent. (ECF No. 22, 45 at ¶ 27).
II. ANALYSIS
A. Summary Judgment Standard
Summary judgment is appropriate when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The Court must view the evidence and all reasonable factual inferences therefrom in the light most favorable to the nonmoving party. See Sada v. City of Altamonte Springs , 434 Fed. Appx. 845, 847 (11th Cir. 2011). To survive summary judgment, the nonmoving party must make "enough of a showing that the jury could reasonably find for that party." Gilliard v. Dep't. of Corrections , 500 Fed. Appx. 860, 863 (11th Cir. 2012) (citation omitted).
The moving party bears the initial burden of showing the absence of a genuine issue of material fact. United States v. Four Parcels of Real Prop. in Greene & Tuscaloosa Ctys. in State of Ala. , 941 F.2d 1428, 1437 (11th Cir. 1991) (citation omitted). The moving party must show that, "on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party." Id. at 1438. "If the moving party makes such an affirmative showing, it is entitled to summary judgment unless the nonmoving party, in response, comes forward with significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (quotation marks and citations omitted); see also Ray v. Equifax Info. Servs., L.L.C. , 327 Fed. App'x 819, 825 (11th Cir. 2009) (once the moving party satisfies its burden, "the non-moving party must make a sufficient showing on each essential element of the case for which he has the burden of proof.") (quotation marks and citation omitted).
B. Defendants are Entitled to Summary Judgment
The TCPA makes it unlawful to "make any call (other than a call made for emergency purposes or made with the prior express consent of the called party ) using any automatic telephone dialing system or an artificial or prerecorded voice...to any telephone number assigned to a...cellular telephone service.... unless such call is made solely to collect a debt owed to or guaranteed by the United States ." 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis supplied). It is undisputed that between June 24, 2014 and April 6, 2018, Navient and SAC made calls to Plaintiff's cellular telephone number using a prerecorded voice. (ECF Nos. 45, 50 at ¶¶ 42, 44, 48, 52). It is also undisputed that prior to June 24, 2014, Plaintiff provided his express consent to receive autodialed or prerecorded telephone calls from Defendants to his cellular telephone number. (ECF Nos. 22, 45 at ¶¶ 15-18, 34-35). The critical question then is whether Plaintiff revoked his consent.
Plaintiff argues that he revoked his consent during his June 24, 2014 telephone call with Navient's representative. (ECF No. 44 at 5-6). Defendants argue that Plaintiff could not unilaterally revoke his consent because he provided it as part of a bargained-for exchange. (ECF 21 at 5-9). Defendants further argue that even if Plaintiff could and did revoke his prior express consent, he later consented to receive prerecorded calls from Defendants, which he did not thereafter attempt to revoke. (Id. at 9-11).
As explained below, I agree that Plaintiff could not unilaterally revoke his consent because it was given as part of a bargained-for contract, namely the Arthur Settlement. I also agree that after Plaintiff's purported revocation during his June 24, 2014 telephone call with Navient, he again provided his express consent to receive prerecorded calls from Defendants by submitting the contact information form on Navient's website, and he has not revoked that consent. Accordingly, the undisputed facts establish that Defendants did not violate the TCPA as a matter of law.
It is therefore unnecessary to reach Defendants' other argument, that their calls are not actionable under the debt-collection exemption to the TCPA because they were made "solely to collect a debt owed to or guaranteed by the United States."
--------
1. Plaintiff Could Not Revoke His Prior Express Consent Because He Provided It as Part of a Bargained-For Contract
The Eleventh Circuit has held that a consumer is "free to orally revoke any consent previously given" under the TCPA "in the absence of any contractual restriction to the contrary." Osorio v. State Farm Bank, F.S.B. , 746 F.3d 1242, 1255 (11th Cir. 2014). Plaintiff relies on this holding to argue that he revoked his prior express consent to receive autodialed or prerecorded calls from Defendants because, during his June 24, 2014 telephone call with Navient's representative, he answered "No" when asked if Defendants could contact him on his cellular telephone using an auto-dialer or prerecorded messages. (ECF Nos. 44 at 7; 22, 45 at ¶¶ 20-21; 30-1 at 18). However, before he attempted to revoke his consent, Plaintiff was an Arthur class member and was bound by the Arthur Settlement. Fostano v. Pioneer Credit Recovery, Inc. , No. 13-80511-CIV, 2014 WL 657680 at *4 (S.D. Fla. Feb. 20, 2014) ("[i]n the absence of a reversal of [the Arthur Settlement] Order and Judgement on appeal, it remains binding upon Plaintiff....").
The Amended Arthur Settlement Agreement is a contract in which Plaintiff consented to receive autodialed and prerecorded calls from Defendants to his cellular telephone unless he submitted a Revocation Request, which he did not. (ECF Nos. 22, 45 at ¶¶ 34-35; 23-3 at p. 3, ¶¶ 5-6, 8; 23-3 at pp. 17, 19). The opportunity for a class member to submit a Revocation Request, and the class member's express consent to receive automated calls if he did not timely do so, was a form of consideration provided in the Arthur Settlement. (ECF No. 23-3 at p. 3, ¶ 8).
Another court, Rodriguez v. Student Assistance Corporation , No. 17-CV-01577, 2017 WL 11050423 at *1 (E.D.N.Y. Nov. 6, 2017), considered the precise issue here: whether an Arthur class member who did not submit a Revocation Request can later unilaterally revoke his consent. The plaintiff in that case, like Plaintiff here, was an Arthur class member who received notice of the settlement, did not opt out, did not file a Claim Form, did not execute a Revocation Request and later sued the same defendants here, SAC and Navient, for violation of the TCPA. Id. at *1-2. The Rodriguez court recognized that as an Arthur class member:
[P]laintiff received consideration in exchange for her consent. She did not have to accept it. She could have opted out of the settlement agreement. She could have executed a Revocation Agreement. By choosing not to do either, she can no more maintain this action than she could start a new one
against Sallie Mae for conduct that formed the basis of the allegations in the class action.
Id. at *3 (citations omitted).
The plaintiff in Rodriguez argued, as Plaintiff argues here, that her revocation was permissible based upon a 2015 FTC Ruling that "a caller may not limit the manner in which revocation may occur." Id. ; (ECF No. 44 at 7). In rejecting this argument, the Rodriguez court relied on the Second Circuit's decision in Reyes v. Lincoln Auto. Fin. Servs. , 861 F.3d 51 (2d Cir. 2017), which found the 2015 FTC Ruling inapplicable because it addressed a consumer who gratuitously gave his consent to be contacted, which is "fundamentally different from revoking bargained-for consent." Rodriguez , 2017 WL 11050423 at *3. The Rodgriguez court concluded that "[h]ad plaintiff submitted a Revocation Request, defendants would have lost the contractually granted right to contact her. But she did not, and that right was bargained-for consideration that she could not unilaterally revoke." Id.
I find the reasoning of Rodriguez and Reyes persuasive, and adopt it here to conclude that because Plaintiff did not submit a Revocation Request, he could not unilaterally revoke his express consent to receive autodialed and prerecorded calls from Defendants, which he gave as part of the Arthur Settlement. This conclusion is consistent with decisions of other courts in this Circuit.
For example, in Medley v. Dish Network, LLC , the court considered whether a consumer could revoke her consent to receive automated calls from the defendant, which she provided as part of the parties' contract, a Digital Home Advantage Plan Agreement. Medley , No. 8:16-cv-2534, 2018 WL 4092120 at *1 (M.D. Fla. Aug. 27, 2018). The Medley court recognized that the Eleventh Circuit's decision in Osario did not address the issue before it, "which is whether consent may be unilaterally revoked when it is given as part of a bargained-for contract." Id. at *9-12. The Medley court conducted a thorough review of the caselaw on this issue, both within and outside this Circuit, and concluded that express consent provided as part of a contractual provision could not be unilaterally revoked. Id. (collecting cases). It reasoned that:
Because an agreement is a manifestation of mutual assent on the part of two or more persons, it is black-letter contract law that one party to an agreement cannot, without the other party's consent, unilaterally modify the agreement once it has been executed.
* * * * *
Nothing in the TCPA indicates that contractually-granted consent can be unilaterally revoked in contradiction to black-letter law.
Id. at *10 (quotation marks and citations omitted). I agree with the reasoning of the Medley court and adopt it here.
In sum, as reflected in the Arthur Settlement, the parties bargained for Plaintiff's prior express consent to receive autodialed and prerecorded calls from Defendants to his cellular telephone number. Plaintiff's attempted revocation during his June 24, 2014 call with Navient's representative was not effective because Plaintiff could not unilaterally revoke his prior consent, which he gave as part of a bargained-for contract (i.e., the Arthur Settlement). Thus, Defendants' calls to Plaintiff's cellular telephone did not violate the TCPA because they had his prior express consent to make such calls. Accordingly, the undisputed material facts establish as matter of law that Defendants did not violate the TCPA and, therefore, they are entitled to summary judgment on the Complaint.
2. After His Attempted Revocation, Plaintiff Again Consented to Receive Autodialed and Prerecorded Calls from Defendants
Importantly, even had Plaintiff's attempted revocation been effective, Defendants still did not violate the TCPA because Plaintiff again provided his express consent. The undisputed facts establish that after Plaintiff told Navient's representative that he did not agree to receive autodialed and prerecorded calls from Defendants on his cellular telephone, he submitted his contact information form on Navient's website, which expressly included his consent to receive such calls. Plaintiff argues that his submission did not trigger the consent clause, which begins with the phrase "[b]y providing my telephone number...," because the cellular telephone number field was already populated in the form when he accessed Navient's website. (ECF No. 44 at 6). In other words, Plaintiff contends that he had to physically input his cellular telephone number into the contact information form in order to "provide" it, and thereby trigger the consent clause. I am not persuaded.
It is undisputed that Plaintiff previously provided his cellular telephone number to Defendants by, for example, writing it on his Automatic Debit Authorization form. (See e.g., ECF No. 23-2 at 8). It is also undisputed that Plaintiff saw his cellular telephone number on the contact information form before clicking "Submit." (ECF Nos. 22, 45 at ¶ 25). Plaintiff's cellular telephone number was not a required field, (ECF No. 23-1 at 20), and thus he could have removed it before submitting the contact information form, but did not do so. The consent clause was clear, conspicuous and located immediately above the "Submit" button. (Id. at 21). And, it is undisputed that after submitting the contact information form, Plaintiff has not attempted to revoke his consent. (ECF No. 22, 45 at ¶27).
On this record, I find that Plaintiff "provided" his cellular telephone number to Defendants as set forth in the consent clause, which became binding upon him when he submitted the contact information form. Again, the undisputed material facts establish as matter of law that Defendants did not violate the TCPA because they had Plaintiff's prior express consent to make autodialed and prerecorded calls to his cellular telephone.
III. CONCLUSION AND RECOMMENDATION
For the foregoing reasons, the Court concludes that Navient and SAC are entitled to judgment as a matter of law on Plaintiff's Complaint. I therefore RESPECTFULLY RECOMMEND that the Court GRANT Defendants' Motion for Summary Judgment (ECF No. 21) and DENY Plaintiff's Motion for Summary Judgment (ECF No. 24).
No later than fourteen (14) days from the date of this Report and Recommendation the parties may file any written objections to this Report and Recommendation with the Honorable Rodolfo A. Ruiz, who is obligated to make a de novo review of only those factual findings and legal conclusions that are the subject of objections. Only those objected-to factual findings and legal conclusions may be reviewed on appeal. See Thomas v. Arn , 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989), 28 U.S.C. § 636(b)(1), 11th Cir. R. 3-1 (2016).
IV. ORDER
Plaintiff filed a Motion to Strike Defendants' Reply to Plaintiff's Opposition to Defendants' Statement of Facts (the "Reply Facts") and the Affidavit of Sheryl Highsmith attached thereto (the "Reply Affidavit"). (ECF No. 55). The Motion to Strike is fully briefed. (ECF No. 58). Plaintiff argues that the Reply Facts and Reply Affidavit are improper because they include additional facts that were not set forth in Defendants' initial Statement of Facts. The Court did not rely on the allegedly "new" facts or the Reply Affidavit to resolve the parties' cross-motions for summary judgment and, thus, it need not address Plaintiff's argument. Accordingly, the Court hereby ORDERS that Plaintiff's Motion to Strike (ECF No. 55) is DENIED AS MOOT .
RESPECTFULLY SUBMITTED in chambers at Miami, Florida, this 28th day of May, 2019.