Maryland District Court Opinion Explores Complexities of TCPA Consent and Revocation

Faegre Drinker Biddle & Reath LLP

Faegre Drinker Biddle & Reath LLP

In the recent opinion of Smith v. ExamWorks, LLC, No. 21-2746, 2024 WL 622102 (D. Md. 2024), the District of Maryland analyzed the nuances of consent and revocation under the TCPA.

At the heart of the dispute was whether Plaintiff Smith had expressly consented to receive automated calls, and, if so, whether he had effectively revoked this consent. ExamWorks, seeking summary judgment, argued that consent obtained by Plaintiff’s insurer extended to it, as ExamWorks was conducting an independent medical examination (IME) related to Smith’s insurance claim. The company posited that since Smith had allegedly provided his cellphone number during the claim process, this constituted prior express consent, negating any TCPA violation.

Plaintiff filed claims under the TCPA after receiving pre-recorded, non-emergency calls from ExamWorks relating to a potential medical exam. ExamWorks raised two principal summary judgment arguments: first, that Plaintiff had given consent to his insurance company to use that number, and as an independent medical examiner working on the insurance claim, that consent shared by the insurer extended to it as well. ExamWorks thus argued that, with consent, any TCPA claim will be unsuccessful. The Court was unpersuaded by this argument, though, because the plaintiff disputed whether he had given his number to the insurer on intake forms relating to an accident claim. Plaintiff asserted that this was a personal, recreational number, not used for these types of calls, and he presented phone records showing his minimal use of the number.

The Court also considered a second issue: whether consent had been revoked. The Court noted that consent under the TCPA can be revoked at any time in any reasonable manner. Plaintiff’s attorney had previously contacted the insurance company and told it that all further communications needed to be through counsel, and that all previous authorizations by Plaintiff were revoked. The insurer added this information to its internal notes, and an insurance company employee testified that the same instructions were passed to ExamWorks. Based on this evidence, the Court found that a reasonable factfinder could find that ExamWorks was aware that Plaintiff had revoked any consent to be contacted.

Noting the presence of such genuine issues of material fact, the Court denied the motion for summary judgment. The ruling underscores a critical lesson for companies navigating the TCPA landscape: the imperative of meticulously documenting consent and promptly recognizing revocation signals. For businesses looking to mitigate litigation risk, Smith serves as a reminder that reliance on consent obtained through third parties necessitates rigorous verification processes and a responsive system for tracking and honoring consent revocation requests.

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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