Schweitzer v. Comenity Bank, 081017 FED11, 16-10498

Docket Nº:16-10498
Opinion Judge:JORDAN, Circuit Judge:
Party Name:EMILY SCHWEITZER, Plaintiff - Appellant, v. COMENITY BANK, Defendant-Appellee.
Judge Panel:Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER District Judge.
Case Date:August 10, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

EMILY SCHWEITZER, Plaintiff - Appellant,


COMENITY BANK, Defendant-Appellee.

No. 16-10498

United States Court of Appeals, Eleventh Circuit

August 10, 2017

         Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:15-cv-80665-DMM

          Before JORDAN and JILL PRYOR, Circuit Judges, and COOGLER, [*] District Judge.

          JORDAN, Circuit Judge:

          In law, as in life, consent need not be an all-or-nothing proposition. Having already concluded that the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., allows for the oral revocation of consent, see Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 (11th Cir. 2014), we now hold that the Act permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system.


         As relevant here, the TCPA makes it unlawful for "any person, " absent the "prior express consent of the called party, " to make any non-emergency call "using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service[.]" 47 U.S.C. § 227(b)(1)(A)(iii). Anyone who violates the TCPA may be sued in federal court for "actual monetary loss" or $500 in damages for each violation, "whichever is greater." § 227(b)(3)(B). Treble damages are also available for knowing or willful violations. § 227(b)(3) (concluding language).

         One of the key concepts in § 227(b)(1)(A)(iii) is consent. In Osorio, we applied common-law consent principles and held that, absent a contractual restriction to the contrary, the TCPA allows a consumer to orally revoke her consent to receive automated calls. See Osorio, 746 F.3d at 1255 ("We . . . conclude that Betancourt and Osorio, in the absence of any contractual restriction to the contrary, were free to orally revoke any consent previously given to State Farm to call No. 8626 in connection with Betancourt's credit-card debt.").


         Emily Schweitzer applied for, and was issued, a credit card by Comenity Bank in 2012. In her application, she provided her cellular phone number to Comenity, and the district court concluded that she had initially consented to allow Comenity to call her on this number. See D.E. 82 at 5. Because no one challenges that conclusion on appeal, we assume without deciding that it is correct. Cf. In the Matter of Rules & Regulations Implementing the TCPA, 7 F.C.C. Rcd. 8752, 8769, 1992 WL 690928 (1992) ("[P]ersons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.").

         In 2013, when Ms. Schweitzer failed to make required payments on her credit-card account, Comenity placed calls to her cellular phone concerning the delinquency. Comenity used an automated telephone dialing system falling within the purview of the TCPA to make hundreds of such calls.

         On October 13, 2014, a Comenity employee called Ms. Schweitzer, told her that she was two payments behind on her account, and asked if she could make a $35 payment. In response, Ms. Schweitzer said the following: Unfortunately I can't afford to pay [my past due payment] right now. And if you guys cannot call me, like, in the morning and during the work day, because I'm working, and I can't really be talking about these things while I'm at work. My phone's ringing off the hook with you guys calling me.

D.E. 24-2 at 18. The employee replied that "[i]t's a phone system. When it's reporting two payments past due, it's a computer that dials. We can't stop the phone calls like that." Id. at 18-19.

         Five months later, on March 19, 2015, a different Comenity employee called Ms. Schweitzer about her past-due account. During that conversation, Ms. Schweitzer twice told the employee to please stop calling her. See, e.g., D.E. 24-2 at 21 ("Can you just please stop calling? I'd appreciate it, thank you very much."). Comenity did not place any more automated calls to Ms. Schweitzer's cellular phone after this conversation.


         Ms. Schweitzer sued Comenity for violating the TCPA. She alleged that during the October 13 conversation she had revoked her consent to have Comenity make calls to her cellular phone using an automatic telephone dialing system. And she claimed that Comenity violated the TCPA by making over 200 automated calls to that phone between October of 2014 and March of 2015.

         The district court, "applying the common-law concept of revocation, " granted summary judgment in favor of Comenity on Ms. Schweitzer's TCPA claim. First, Comenity "did not know and should not have had reason to know that [Ms. Schweitzer] wanted no further calls." D.E. 82 at 7. Second, Ms. Schweitzer did not "define or specify the parameters of the times she did not want to be called, " and as a result "no reasonable jury could find that [she] revoked consent to be called[.]" Id. at 7-8.

         Ms. Schweitzer now appeals. Exercising plenary review, see, e.g., Johnson v. Bd. of Regents, 263 F.3d 1234, 1242-43 (11th Cir. 2001), and with the benefit of oral argument, we reverse the district court's grant of summary judgment. The TCPA allows a consumer to partially revoke her consent to receive automated calls, and there is an issue of material ...

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