Eleventh Circuit’s Decision on Partial Revocation Stands

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

The Eleventh Circuit declined to reconsider its decision in Schweitzer v. Comenity Bank, denying the defendant’s motion to rehear the case. In August, the federal appellate panel held that consent can be partially revoked pursuant to the TCPA.

Emily Schweitzer provided Comenity Bank with her cellphone number when she applied for a credit card. Schweitzer later failed to make the required payments on the account, and Comenity began placing calls to her cellphone. During one call, Schweitzer asked that the bank not call her in the morning and during the workday. Months later, she requested of the bank, “Just please stop calling me.” The calls stopped after she said, “Please stop calling me,” but she filed a TCPA action for the calls made between her request not to be called during the morning and workday and her more general request that the calls stop.

The district court granted the defendant’s motion for summary judgment, but the Eleventh Circuit reversed, concluding that the TCPA allows a consumer to partially revoke consent under the statute. Therefore, according to the Eleventh Circuit, Comenity should have ceased calling Schweitzer during the workday. Comenity moved for reconsideration or a rehearing en banc. As is common practice, the Eleventh Circuit summarily denied Comenity’s petitions, providing no reasoning for the decision.

Why it matters: In denying Comenity’s motions for rehearing and rehearing en banc, the Eleventh Circuit left the panel’s decision in place. Unfortunately, this leaves the door open for plaintiffs to argue that they revoked consent, even if not clearly and unequivocally stated. Thus, procedures to ensure that questionable requests that calls stop be honored, even if those requests are not unequivocal, remain important.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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