Express Consent and Ryabyshchuk v. Citibank

Commentary

In California, a court has denied Citibank’s motion to dismiss a purported class action against it for allegedly sending unsolicited text messages.  Ryabyshchuk v. Citibank.  The plaintiff contacted Citibank by telephone and inquired about a personal line of credit.  Later that day, he allegedly received an unsolicited text message from Citibank.  He replied by sending “stop” and received a confirmation message from the bank.  He alleges that both messages were illegal under the TCPA.  The court noted that it was unclear whether the plaintiff released his number “knowingly” to the bank, thus providing express consent.  The court did seem to accept the FCC’s conclusion that provision of a telephone number is express consent but did not rule for Citibank because it did not produce evidence that the plaintiff had provided the number.

Comment:  This case and others support my conclusion that your disclosures should meet and exceed the FCC’s standard for express consent on this issue. A simple disclosure in the initial inquiry likely would have provided Citibank a full defense, especially if an electronic copy of that conversation was maintained.

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Telemarketing Connections Newsletter November 2011