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TCPA Action Against Hertz Surives Summary Judgment

Link: Tillman v. Hertz Corporation, Case No. 16 C 4242 (N.D. Ill., Aug. 29 2018)

A TCPA case brought by SmithMarco, P.C. against Hertz for unsolicited automated calls to plaintiff’s cell phone withstood a motion for summary judgment brought by Hertz. The court (Robert W. Gettleman) found that—because defendant could not produce the contract that plaintiff signed—there was a material issue of fact of whether the contract plaintiff signed contained a provision granting consent to unsolicited automated calls. Plaintiff also alleged they revoked any consent they had given over the phone.

The court also rejected defendant’s arguments that such consent couldn’t be effective:

Reyes holds that under the TCPA a consumer cannot “unilaterally revoke his or her consent to be contacted by telephone when that consent is given, not gratuitously, but as bargained-for consideration in a bilateral contract.” Id. at 56. The Reyes court explains that this holding is consistent with other cases and FCC orders holding that consumers can revoke consent through any reasonable means because that precedent considers consumers who have given their consent “feely and unilaterally.” Id. (citing Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir. 2013)Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014); the 2015 FCC Order, 30 F.C.C. Rcd. 7961). Regardless of how well-reasoned Reyes may be, it is not the law of this circuit. The Seventh Circuit’s precedent holds that “consent [can] be revoked `at any time and through any reasonable means.'” Blow, 855 F.3d at 803 (quoting the 2015 FCC Order, 30 F.C.C. Rcd. at 7989-90). Although the Seventh Circuit has not made the distinction that Reyes relies on, it is binding on this court and must therefore be followed.

Posted in TCPA

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