Hmmmm: Did the Ninth Circuit Just Accidentally End Presumed Express Consent in TCPA Cases?

That’s fine. It's their money, not mine.

But anytime you take a case–particularly a bad case (or in this situation an extremely ridiculously bad case)–on appeal you never quite know what sort of unintended consequences might occur. Indeed, its almost guaranteed under the universal law (you know, Murphy’s Law) that something bad is going to happen.

And so it has.

As I reported yesterday, in Loyhayem, No. 20-56014 (9th Cir. 2021)–available here–the Ninth Circuit Court of Appeals held that prerecorded job recruitment calls to cell phones require express consent under the TCPA. And, of course they do. All prerecorded calls do. There is literally no valid basis to argue otherwise.

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But in framing its decision the Ninth Circuit made a really big oversight-probably because Appellee wasn’t really focused on the details in this one.

The Ninth Circuit states in summation that the TCPA requires “that prior express consent [must] have been given either orally or in writing [for informational calls].”

“Either orally or in writing.” That’s it. Two options. And “by giving out a phone number” is not among them.

Now this is not, strictly speaking, a holding. And the issue of whether or not prior express consent can be presumed from a consumer supplying a number was not before the Ninth Circuit. But this line is a real problem–district courts may misinterpret it as a limitation on the sort of “presumed” express consent callers rely on every day.

That is, I expect Plaintiff’s lawyers to now argue that under Loyhayem the presumed consent rule is dead and express consent for informational calls must be given in writing or orally, only. I mean, that’s what the decision (sort of) says. And you compound this with Satterfield’s requirement of “clear and unmistakable” consent and we’re back to consumers having to suffer through long-winded scripts and agents haggling to convince folks to accept disclosures over the phone–just to provide an update on an account.

Hopefully I’m overreacting and courts see Loyhayem as holding nothing more than that informational calls require express consent–however lawfully provided under existing law–but we’ve seen things like this spiral out of control before in TCPAWorld.

I’ll keep an eye on things but if you happen to know the Defendant (or their counsel) you might want to ping them and see if they’ll try to amend the ruling. (Any Trades that want to get some amici briefs out there in support let me know)