TCPA Plaintiff Gave Consent To Calls Based On Prior Class Action Settlement

A recent case highlights the importance of carefully drafting settlement agreements. In that case, a federal district court judge held that a prior class action settlement precluded the plaintiff from filing released claims in a new lawsuit under the Telephone Consumer Protection Act ("TCPA"). The judge invoked the prior class action settlement, which involved the same defendant, to conclude that the plaintiff consented to calls (and was therefore precluded from making a claim under the TCPA) based on the plaintiff's failure to opt out of a prior settlement. Andrews v. Sallie Mae, Inc., No. 13-cv-2662-CBA, 2014 BL 329753 (S.D. Cal. Nov. 20, 2014).

The plaintiff's complaint alleged that Sallie Mae, Inc. called his cell phone 100 times in the year before he filed his complaint and 3,000 times in the preceding four years. In response, Sallie Mae asserted that a class action settlement in the case of Arthur v. Sallie Mae, Inc., No. 10-cv-198 (W.D. Wash.) barred recovery