Reyes v. Lincoln Automotive Fin. Servs. 1 In the 2

16‐2104‐cv
Reyes v. Lincoln Automotive Fin. Servs.
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2016 7
8
A RGUED: A PRIL 4, 2017 9
D ECIDED: JUNE 22, 2017 10
11
No. 16‐2104‐cv 12
13
A LBERTO R EYES , JR ., 14
Plaintiff‐Appellant, 15
16
v. 17
18
L INCOLN A UTOMOTIVE F INANCIAL S ERVICES, 19
Defendant‐Appellee.* 20
________ 21
22
Appeal from the United States District Court 23
for the Eastern District of New York. 24
No. 15 Civ. 560 – Leonard D. Wexler, Judge. 25
________ 26
27
Before: WALKER , JACOBS , and PARKER , Circuit Judges. 28
________ 29
30
_______
* The Clerk of Court is directed to amend the caption as shown above.

-- 1 of 17 --

2 No. 16‐2104‐cv
Plaintiff‐appellant Alberto Reyes, Jr., appeals a judgment of 1
the United States District Court for the Eastern District of New York 2
(Leonard D. Wexler, J.). Judgment was entered following the grant 3
of summary judgment to the defendant‐appellee, Lincoln 4
Automotive Financial Services (“Lincoln”), on Reyes’s claim for 5
damages stemming from Lincoln’s alleged violation of the 6
Telephone Consumer Protection Act (“TCPA”), Pub. L. No. 102‐243, 7
105 Stat. 2394 (1991) codified at 47 U.S.C. § 227. Reyes leased an 8
automobile from Lincoln and, as a condition of the lease agreement, 9
consented to receive manual or automated telephone calls from 10
Lincoln. Lincoln called Reyes regularly after he defaulted on his 11
lease obligations, and continued to do so after Reyes allegedly 12
revoked his consent to be called. Reyes sued for damages under the 13
TCPA. The district court granted summary judgment for Lincoln, on 14
the basis that (1) the evidence of consent revocation was insufficient, 15
and (2) in any event the TCPA does not permit revocation when 16
consent is provided as consideration in a binding contract. We hold 17
that (1) Reyes did introduce sufficient evidence from which a jury 18
could conclude that he revoked his consent, but that (2) the TCPA 19
does not permit a consumer to revoke its consent to be called when 20
that consent forms part of a bargained‐for exchange. We therefore 21
AFFIRM the judgment of the district court. 22
________ 23

-- 2 of 17 --

3 No. 16‐2104‐cv
1
Y ITZCHAK Z ELMAN, Marcus & Zelman, LLC, 2
Ocean, NJ, for Plaintiffs‐Appellees. 3
JESSICA L. E LLSWORTH (Morgan L. Goodspeed, on 4
the brief), Hogan Lovells US LLP, Washington, 5
DC, for Defendants‐Appellants. 6
________ 7
8
JOHN M. WALKER , JR ., Circuit Judge: 9
Plaintiff‐appellant Alberto Reyes, Jr., appeals a judgment of 10
the United States District Court for the Eastern District of New York 11
(Leonard D. Wexler, J.). Judgment was entered following the grant 12
of summary judgment to the defendant‐appellee, Lincoln 13
Automotive Financial Services (“Lincoln”), on Reyes’s claim for 14
damages stemming from Lincoln’s alleged violation of the 15
Telephone Consumer Protection Act (“TCPA”), Pub. L. No. 102‐243, 16
105 Stat. 2394 (1991) codified at 47 U.S.C. § 227. Reyes leased an 17
automobile from Lincoln and, as a condition of the lease agreement, 18
consented to receive manual or automated telephone calls from 19
Lincoln. Lincoln called Reyes regularly after he defaulted on his 20
lease obligations, and continued to do so after Reyes allegedly 21
revoked his consent to be called. Reyes sued for damages under the 22
TCPA. The district court granted summary judgment for Lincoln, on 23
the basis that (1) the evidence of consent revocation was insufficient, 24
and (2) in any event the TCPA does not permit revocation when 25

-- 3 of 17 --

4 No. 16‐2104‐cv
consent is provided as consideration in a binding contract. We hold 1
that (1) Reyes did introduce sufficient evidence from which a jury 2
could conclude that he revoked his consent, but that (2) the TCPA 3
does not permit a consumer to revoke its consent to be called when 4
that consent forms part of a bargained‐for exchange. We therefore 5
AFFIRM the judgment of the district court. 6
BACKGROUND 7
In 2012, Reyes leased a new Lincoln MKZ luxury sedan from a 8
Ford dealership.1 Lincoln financed the lease. In his lease application, 9
Reyes provided several personal details, including his cellular phone 10
number. The lease itself contained a number of provisions to which 11
Reyes assented when finalizing the agreement. One provision 12
permitted Lincoln to contact Reyes, and read as follows: 13
14
You [Reyes] also expressly consent and agree to Lessor 15
[Ford], Finance Company, Holder and their affiliates, 16
agents and service providers may use written, electronic 17
or verbal means to contact you. This consent includes, 18
but is not limited to, contact by manual calling methods, 19
prerecorded or artificial voice messages, text messages, 20
emails and/or automatic telephone dialing systems. You 21
agree that Lessor, Finance Company, Holder and their 22
affiliates, agents and service providers may use any 23
email address or any telephone number you provide, 24
1 “Lincoln Automotive Financial Services” is a registered trade name of
Ford Motor Credit Company LLC, and not an independent company.

-- 4 of 17 --

5 No. 16‐2104‐cv
now or in the future, including a number for a cellular 1
phone or other wireless device, regardless of whether 2
you incur charges as a result. 3
4
At some point after the lease was finalized, Reyes stopped making 5
his required payments. As a result, on multiple occasions, Lincoln 6
called Reyes in an attempt to cure his default. 7
Reyes disputed his balance on the lease, and also claims that 8
he requested that Lincoln cease contacting him. Reyes asserts that on 9
June 14, 2013, he mailed a letter to Lincoln in which he wrote: “I 10
would also like to request in writing that no telephone contact be 11
made by your office to my cell phone.” Lincoln contends that it 12
never received Reyes’s letter, or any other request to cease its calls. 13
At his deposition, Reyes testified to mailing the letter to the P.O. box 14
listed on Lincoln’s invoices and produced a copy of the letter that 15
did not bear an address or postmark and referenced an incorrect 16
account number. Despite his alleged revocation of consent, Lincoln 17
continued to call Reyes. Following the close of discovery, Lincoln’s 18
attorney confirmed that Lincoln had called him 141 times with a 19
customer representative on the line, and had called him with pre‐ 20
recorded messages an additional 389 times. 21
On February 6, 2015, Reyes filed a complaint against Lincoln 22
in the Eastern District of New York, alleging violations of the TCPA 23

-- 5 of 17 --

6 No. 16‐2104‐cv
and seeking $720,000 in damages.2 On June 20, 2016, Judge Wexler 1
granted summary judgment to Lincoln, holding that (1) Reyes had 2
failed to produce sufficient evidence from which a reasonable jury 3
could conclude that he had ever revoked his consent to be contacted 4
by Lincoln, and (2) that, in any event, the TCPA does not permit a 5
party to a legally binding contract to unilaterally revoke bargained‐ 6
for consent to be contacted by telephone. 7
Reyes now timely appeals both rulings. 8
DISCUSSION 9
A district court’s grant of summary judgment is reviewed de 10
novo. Gallo v. Prudential Residential Servs., Ltd. Pʹship, 22 F.3d 1219, 11
1224 (2d Cir. 1994). On a motion for summary judgment, the court 12
must “resolv[e] all ambiguities and draw[] all permissible factual 13
inferences in favor of the party against whom summary judgment is 14
sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010). Summary 15
judgment is appropriate only “if the movant shows that there is no 16
genuine dispute as to any material fact and that the movant is 17
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). All 18
2 Reyes also initially sought damages under the Fair Debt Collection
Practices Act (“FDCPA”), but abandoned those claims prior to summary
judgment because Lincoln is not a “debt collection agency” within the
meaning of the FDCPA. Only his TCPA claims remain.

-- 6 of 17 --

7 No. 16‐2104‐cv
legal conclusions by a district court are reviewed de novo. United 1
States v. Livecchi, 711 F.3d 345, 351 (2d Cir. 2013) (per curiam). 2
On appeal, Reyes contends (1) that he introduced sufficient 3
evidence to create a triable issue of fact as to whether he placed 4
Lincoln on notice of his revocation of consent; and (2) that the TCPA, 5
construed in light of its broad remedial purpose to protect 6
consumers from unwanted phone calls, does permit a party to 7
revoke consent to be called, even if that consent was given as part of 8
a contractual agreement. 9
10
I. Whether Reyes revoked his consent to be contacted 11
was a triable issue of fact 12
As a preliminary matter, we agree with Reyes that the district 13
court’s finding that he did not revoke his consent to be contacted by 14
telephone was improper on summary judgment. This material issue 15
of fact was in dispute and raised a jury question. Reyes testified in a 16
sworn deposition that he mailed a letter to Lincoln revoking his 17
consent; submitted an affidavit to that effect; and introduced a copy 18
of the letter as evidence in defending Lincoln’s motion for summary 19
judgment. The district court discounted this evidence as 20
“insufficient,” because Reyes “does not recall the address that he 21
mailed the Letter to,” and because “he has no record that the Letter 22
was actually sent to Defendant.” The district court also noted that 23

-- 7 of 17 --

8 No. 16‐2104‐cv
Lincoln sent a letter to Reyes on December 1, 2014, stating that it had 1
never received any revocation of consent from Reyes. 2
The district court’s conclusion that Reyes did not revoke his 3
consent rested on an impermissible assessment by the court of 4
Reyes’s credibility. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 5
255 (1986) (“Credibility determinations, the weighing of the 6
evidence, and the drawing of legitimate inferences from the facts are 7
jury functions, not those of a judge . . . [when] he is ruling on a 8
motion for summary judgment.”). Reyes introduced two separate 9
forms of sworn testimony asserting that he had mailed a letter 10
revoking his consent to be called, and Lincoln responded in turn that 11
it had never received the letter. Adverse parties commonly advance 12
“conflicting versions of the events” throughout the course of a 13
litigation. Jeffreys v. City of N.Y., 426 F.3d 549, 553‐54 (2d Cir. 2005) 14
(quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). In such 15
instances, on summary judgment, the district court is required to 16
“resolv[e] all ambiguities and [draw] all permissible factual 17
inferences in favor of the party against whom summary judgment 18
[is] sought.” Burg, 591 F.3d at 97. “[T]he judge must ask . . . not 19
whether . . . the evidence unmistakably favors one side or the other 20
but whether a fair‐minded jury could return a verdict for the 21
plaintiff on the evidence presented.” Jeffreys, 426 F.3d at 553 (quoting 22
Anderson, 477 U.S. at 252). Under this standard, the district judge 23

-- 8 of 17 --

9 No. 16‐2104‐cv
erred in concluding that no reasonable jury could find that Reyes 1
revoked his consent, when Reyes introduced sworn testimony to the 2
contrary.3 Whether that testimony was reliable was a question of fact 3
for the jury. See id. 4
5
II. Under the TCPA a party is not able to revoke consent 6
that is a term in a prior contract 7
We next turn to the district court’s determination that the 8
TCPA does not permit Reyes to unilaterally revoke his consent. 9
Congress enacted the TCPA to protect consumers from 10
“[u]nrestricted telemarketing,” which it determined could be “an 11
intrusive invasion of privacy.” Mims v. Arrow Fin. Servs., LLC, 565 12
U.S. 368, 372 (2012) (internal quotation marks and citation omitted) 13
accord Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013). 14
To mitigate this problem, the act prohibits, subject to narrow 15
exceptions not pertinent here, any person within the United States 16
from “initiat[ing] any telephone call to any residential telephone line 17
using an artificial or prerecorded voice to deliver a message without 18
the prior express consent of the called party.” 47 U.S.C. 19
§ 227(b)(1)(B). The TCPA also authorizes the Federal 20
3 Whatever impact the use of the wrong account number may be
reasonably assumed to have on Reyes’s attempt at revocation, the district
court did not rely on that fact.

-- 9 of 17 --

10 No. 16‐2104‐cv
Communications Commission (“FCC”) to promulgate rules and 1
regulations in order to further implement the act’s provisions. 47 2
U.S.C. § 227(b)(2). 3
While the act requires that any party wishing to make live or 4
prerecorded calls obtain prior express consent, the statute is silent as 5
to whether a party that has so consented can subsequently revoke 6
that consent. Two of our sister circuit courts have ruled that a party 7
can revoke prior consent under the terms of the act. In Gager v. Dell 8
Financial Services, the Third Circuit held that the plaintiff, who 9
consented to be called in an application for a line of credit that she 10
submitted to the defendant, was permitted to later revoke that 11
consent after receiving harassing calls upon her default on the loan. 12
727 F.3d at 267‐68. The court reasoned that “consent,” as defined 13
under the common law, is traditionally considered to be revocable. 14
Id. at 270. Moreover, permitting consumers to revoke consent would 15
further Congress’s purpose in enacting the TCPA, which was “to 16
protect consumers from unwanted automated telephone calls.” Id. at 17
271. The Eleventh Circuit, in Osorio v. State Farm Bank F.S.B., adopted 18
the Third Circuit’s reasoning and held that the plaintiff in that case, 19
who had consented to receive calls from the defendant in an 20
application for auto insurance, could revoke her consent. 746 F.3d 21
1242, 1253 (11th Cir. 2014). In 2015, the FCC relied on these two cases 22
in ruling that “prior express consent” is revocable under the TCPA. 23

-- 10 of 17 --

11 No. 16‐2104‐cv
See In the Matter of Rules & Regulations Implementing the Tel. Consumer 1
Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7993‐94 (2015) (hereinafter 2
“2015 FCC Ruling”). 3
Gager, Osorio, and the 2015 FCC Ruling considered a narrow 4
question: whether the TCPA allows a consumer who has freely and 5
unilaterally given his or her informed consent to be contacted can 6
later revoke that consent. See Osorio, 746 F.3d at 1253; Gager, 727 7
F.3d at 270. Reyes’s appeal presents a different question, which has 8
not been addressed by the FCC or, to our knowledge, by any federal 9
circuit court of appeal: whether the TCPA also permits a consumer 10
to unilaterally revoke his or her consent to be contacted by telephone 11
when that consent is given, not gratuitously, but as bargained‐for 12
consideration in a bilateral contract. 13
Reyes contends that the same principles that the FCC and the 14
Third and Eleventh Circuits relied on in their previous rulings apply 15
to this situation as well. He argues that (1) under the common law 16
definition of the term, which Congress is presumed to have adopted 17
when it drafted the TCPA, any form of “consent” (whether 18
contractual or not) is revocable by the consenting party at any time; 19
and (2) permitting parties to revoke their consent to be called is 20
consistent with the remedial purpose of the TCPA, which was 21
designed by Congress to afford consumers broad protection from 22
harassing phone calls. 23

-- 11 of 17 --

12 No. 16‐2104‐cv
We agree with the district court that the TCPA does not 1
permit a party who agrees to be contacted as part of a bargained‐for 2
exchange to unilaterally revoke that consent, and we decline to read 3
such a provision into the act. As an initial matter, Reyes is correct 4
that when Congress uses a term, such as “consent,” that has 5
“accumulated [a] settled meaning under . . . the common law, a 6
court must infer, unless the statute otherwise dictates, that Congress 7
means to incorporate the established meaning of th[at] term[].” 8
Neder v. United States, 527 U.S. 1, 21 (1999) (citation omitted). The text 9
of the TCPA evidences no intent to deviate from common law rules 10
in defining “consent,” and the FCC and other federal appellate 11
courts have applied the common law definition of the term when 12
interpreting the act. See Gager, 727 F.3d at 270; 2015 FCC Ruling at 13
*7961 (holding that permitting “unwanted texts and voice calls is 14
counter . . . to common‐law notions of consent”). 15
“Consent,” however, is not always revocable under the 16
common law. A distinction in this regard must be drawn between 17
tort and contract law. In tort law, “consent” is generally defined as a 18
gratuitous action, or “[a] voluntary yielding to what another 19
proposes or desires.” Black’s Law Dictionary (10th ed. 2014); see also 20
Gager, 727 F.3d at 270 (“Under the common law understanding of 21
consent, the basic premise of consent is that it is given voluntarily.” 22
(internal quotation marks omitted)). In Gager and Osorio the 23

-- 12 of 17 --

13 No. 16‐2104‐cv
plaintiffs provided such voluntary consent to be contacted by 1
furnishing their telephone numbers to businesses in connection with 2
loan and insurance applications, respectively. See Gager, 727 F.3d at 3
267; Osorio, 746 F.3d at 1247; see also Rules and Regulations 4
Implementing the TCPA, 7 F.C.C. Rcd. 8752, 8769 (1992) (ruling that 5
the “knowing[]” release of a phone number to a third party 6
constitutes “express consent” to receive telephone calls from that 7
party under the TCPA). The courts in those cases found, and the 8
2015 FCC ruling confirmed, that consent of this kind, which is not 9
given in exchange for any consideration, and which is not 10
incorporated into a binding legal agreement, may be revoked by the 11
consenting party at any time. This conclusion is well‐supported by 12
common law authority, which counsels that “[u]pon termination of 13
consent its effectiveness is terminated.” R ESTATEMENT (S ECOND) OF 14
TORTS § 892A(5) (A M. L AW INST. 1979). 15
Reyes’s consent to be contacted by telephone, however, was 16
not provided gratuitously; it was included as an express provision of 17
a contract to lease an automobile from Lincoln. Under such 18
circumstances, “consent,” as that term is used in the TCPA, is not 19
revocable. The common law is clear that consent to another’s actions 20
can “become irrevocable” when it is provided in a legally binding 21
agreement, R ESTATEMENT (S ECOND) OF TORTS § 892A(5) (AM . L AW 22
INST. 1979), in which case any “attempted termination is not 23

-- 13 of 17 --

14 No. 16‐2104‐cv
effective,” id. at cmt. i. See also 13‐67 CORBIN ON C ONTRACTS § 67.1 1
(2017) (noting that “a party who is under a legal duty [to perform a 2
contractual obligation] by virtue of its assent” has the burden to 3
prove that that duty was discharged by some subsequent event, 4
such as recission by “mutual agreement” or by the exercise of a 5
contractual right to terminate). This rule derives from the 6
requirement that every provision of a contract—including any 7
proposed modification—receive the “mutual assent” of every 8
contracting party in order to have legal effect. Dallas Aerospace, Inc. v. 9
CIS Air Corp., 352 F.3d 775, 783 (2d Cir. 2003) (“[F]undamental to the 10
establishment of a contract modification is proof of each element 11
requisite to the formulation of a contract, including mutual assent to 12
its terms.” (internal quotation marks and citation omitted)). It is 13
black‐letter law that one party may not alter a bilateral contract by 14
revoking a term without the consent of a counterparty. See 15
R ESTATEMENT (S ECOND) OF C ONTRACTS § 287 cmt. a (A M . L AW INST. 16
1981) (requiring “assent by the other party” before a proposed 17
alteration to a contract becomes valid). Yet reading the TCPA’s 18
definition of “consent” to permit unilateral revocation at any time, 19
as Reyes suggests, would permit him to do just that. Absent express 20
statutory language to the contrary, we cannot conclude that 21
Congress intended to alter the common law of contracts in this way. 22
See Neder, 527 U.S. at 21‐23. 23

-- 14 of 17 --

15 No. 16‐2104‐cv
Reyes also argues that his consent to be contacted is revocable 1
because that consent was not an “essential term” of his lease 2
agreement with Lincoln. This argument is meritless. In contract law, 3
“essential terms” are those terms that are necessary in order to lend 4
an agreement sufficient detail to be enforceable by a court. 5
Brookhaven Hous. Coal. v. Solomon, 583 F.2d 584, 593 (2d Cir. 1978) (“If 6
essential terms of an agreement are omitted or are phrased in too 7
indefinite a manner, no legally enforceable contract will result.”). 8
For example, a contract for the sale of goods must contain terms 9
such as the quantity of goods to be sold and the price at which they 10
will be purchased. But a contractual term does not need to be 11
“essential” in order to be enforced as part of a binding agreement. It 12
is a fundamental rule of contracts that parties may bind themselves 13
to any terms, so long as the basic conditions of contract formation 14
(e.g., consideration and mutual assent) are met. Chesapeake Energy 15
Corp. v. Bank of N.Y. Mellon Trust Co., 773 F.3d 110, 114 (2d Cir. 2014) 16
(noting the common law rule that a “contract should be construed so 17
as to give full meaning and effect to all of its provisions”(alterations, 18
internal quotation marks and citation omitted) (emphasis added)). A 19
party who has agreed to a particular term in a valid contract cannot 20
later renege on that term or unilaterally declare it to no longer apply 21
simply because the contract could have been formed without it. 22
Contracting parties are bound to perform on the terms that they did 23

-- 15 of 17 --

16 No. 16‐2104‐cv
agree to, not what they might have agreed to under different 1
circumstances. 2
Reyes counters that because the TCPA is a remedial statute 3
enacted to protect consumers from unwanted telephone calls, any 4
ambiguities in its text must be construed to further that purpose. 5
See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562 6
(1987) (holding that when interpreting broad remedial statutes, 7
courts should apply a “standard of liberal construction in order to 8
accomplish [Congress’s] objects” (citation omitted)); E.E.O.C. v. 9
Staten Island Sav. Bank, 207 F.3d 144, 149 (2d Cir. 2000) (“[I]t is our 10
duty to interpret remedial statutes broadly.”). A liberal reading of an 11
ambiguous term might favor a right to revoke contractual consent. 12
But for the remedial rule of statutory interpretation to apply, the 13
statute must contain an actual ambiguity to construe in the 14
consumer’s favor, and we find no lack of clarity in the TCPA’s use of 15
the term “consent.” It was well‐established at the time that Congress 16
drafted the TCPA that consent becomes irrevocable when it is 17
integrated into a binding contract, and we find no indication in the 18
statute’s text that Congress intended to deviate from this common‐ 19
law principle in its use of the word “consent.” See Neder, 527 U.S. at 20
21. 21
We are sensitive to the argument that businesses may 22
undermine the effectiveness of the TCPA by inserting “consent” 23

-- 16 of 17 --

17 No. 16‐2104‐cv
clauses of the type signed by Reyes into standard sales contracts, 1
thereby making revocation impossible in many instances. See, e.g., 2
Skinner v. Bluestem Brands, Inc., No. 3:14‐CV‐256‐CWR‐FKB, 2015 WL 3
4135269, at *3 (S.D. Miss. July 8, 2015). But this hypothetical concern, 4
if valid, is grounded in public policy considerations rather than legal 5
ones; if the abuse came to pass, it would therefore be “for 6
the Congress to resolve—not the courts.” Atl. City Elec. Co. v. Gen. 7
Elec. Co., 312 F.2d 236, 244 (2d Cir. 1962) (en banc). We are not free to 8
substitute our own policy preferences for those of the legislature by 9
reading a right to revoke contractual consent into the TCPA where 10
Congress has provided none. 11
CONCLUSION 12
We have considered Reyes’s remaining arguments, and we 13
find them meritless. We therefore AFFIRM the judgment of the 14
district court. 15

-- 17 of 17 --