In Lucoff v. Solutions, No. 18-CIV-60743-RAR, 2019 U.S. Dist. LEXIS 133577 (S.D. Fla. Aug. 7, 2019), Judge Ruiz granted summary judgment against a TCPA Plaintiff.
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 [*20] 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.