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Big TCPA Day Continues: Ninth Circuit Reverses Summary Judgment in Favor of Defendant Where Plaintiff’s Revocation Testimony Raised a Question of Fact

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Probably the single most common factual scenario we see in TCPA cases is the he-says/records-say revocation suit. The Plaintiff swears that he or she revoked consent. The business–which keeps great records and has bulletproof policies and training–presents records demonstrating that is just not so. Recognizing that human memories are failing and contemporaneously entered notes by highly-trained agents (often whom have their jobs on the line) are more reliable than the refreshed (manufactured?) memories of TCPA claimants who have every incentive to remember a revocation that may not have happened, courts will be forgiven for occasionally dismissing suits where a dispute of fact may technically exist.

Today the Ninth Circuit Court of Appeal reminded district courts that, at least at the MSJ phase, they must continue to swallow hard and allow these claims to progress to trial. The case can be found here: Self-Forbes

In Self-Forbes v. Advanced Call Center Technologies, LLC, Case No. 17-15804 (9th Cir. Oct. 29, 2018) the Ninth Circuit considered precisely the factual scenario described above– Defendant’s records showed no revocation on the date alleged. But Plaintiff swore both in depositions and in affidavits that she did revoke her consent by asking repeatedly for calls to stop. While the district court discredited Plaintiff’s testimony and favored the business records submitted by the Defendant the Ninth Circuit held today that was a no-no:

Self-Forbes presented sufficient evidence to establish a genuine dispute of fact as to whether she revoked her consent. Her declaration and deposition contained detailed facts—the approximate date of the alleged phone calls, what she allegedly told the ACT representative, and that the ACT agent was female—all of which were corroborated by ACT’s call logs.

Self Forbes at * 5.

Well, shucks.

The Court goes on to remind that businesses are not always incentivezed to record revocations and requires the district court to allow the case to proceed to trial where the ultimate finder of fact will weigh the evidence.

While this ruling is unfortunate for Defendant, it is not entirely surprising. There are a slew of cases holding that disputes of fact surrounding revocation should head to the jury and not be decided at the Rule 56 stage. (Which is part of what makes defending these cases so frustrating.) While Defendants have a good chance of prevailing on an MSJ where call records show no call or no connect on the date of purported revocation, a mere dispute over what happened on a call that both parties agree actually took place is almost never suitable for determination at the summary judgment stage.

Notably Self-Forbes was brought to you by the same guy who brought you MarksAbbas Kazerounian. And so TCPAland turns.

Now I’m going to get on this plane before anything else happens today…

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