The Eleventh Circuit Court of Appeals has upheld a lower court’s decision denying a defendant’s motion to compel arbitration in a Telephone Consumer Protection Act case because text messages sent by the defendant fall outside the scope of an original agreement between the two parties.
The plaintiff, Hope Gamble, obtained a car loan from the defendant, New England Auto Finance. Months after the car loan was paid off, the defendant sent a series of texts to the plaintiff, trying to get her to take out a new loan. The plaintiff contacted the defendant an revoked consent, but the defendant continued to send the text messages. The plaintiff subsequently filed suit in the District Court for the Northern District of Georgia.
A copy of the ruling in Gamble v. New England Auto Finance can be accessed by clicking here.
The defendant was seeking to force arbitration, on the basis that the original loan agreement contained an arbitration provision. The original loan agreement also contained a provision granting the defendant consent to send text messages, but that provision required a separate signature which was not provided by the plaintiff.
In appealing the denial of a motion to compel arbitration, the defendant sought to use the unsigned text message provision in the original agreement as consent to contact the plaintiff. The Eleventh Circuit disagreed, saying it is the TCPA and not the agreement which governs the text messages.
The fact that NEAF requested, but was refused, Ms. Gamble’s consent to receive text messages does not somehow transform the Text Consent Provision into the source of Ms. Gamble’s rights regarding those text messages.
The arbitration provision of the original agreement only applies to the original agreement on the car loan and not subsequent text messages to obtain a new loan, the Appeals Court said in its ruling.
NEAF cannot avoid the strictures of the TCPA, and force arbitration of its alleged TCPA violations, by placing the request for consent to receive text messages in the same document as, but after and apart from, a separate and independent contract, and then, after it failed to get the individual’s consent, claim that the consent request was actually part of that contract. We will not accept NEAF’s invitation to bootstring independent TCPA claims to a completely distinct contract.
