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Company Policy Protects TCPA Defendant

Evidence of a company policy requiring employees to inform customers about receiving texts helped a Telephone Consumer Protection Act (TCPA) defendant win a partial summary judgment motion in Texas federal court.


Monica Abboud asserted claims under the TCPA against Texas-based insurance agency Agentra. She claimed the insurer ran afoul of the statute, and the court certified two classes of individuals: one that received one or more text messages from Agentra and a second group of those, who received calls on their cellphones. For her text message claims, Abboud relied on 47 USC § 227(b)(1)(A), which precludes liability if Agentra can show that she gave prior express consent to receive the texts.


Agentra responded with a motion for summary judgment with several contentions, including that Abboud consented to receive text messages. Agentra explained that its sales agents speak with potential customers on the phone, obtain the customer’s contact information and seek to enroll the customer in one of Agentra’s products or policies.


According to evidence presented by Agentra, it instructs all of its sales agents to inform the consumers that text messages about completing the enrollment process are going to be sent, and as the sales agent is on the phone with the customer and typing their information into the software, a reminder pops up on the agent’s screen reminding him or her to tell the customer that they will receive text messages as part of the enrollment process.


Siding with the insurer, US District Court Judge Brantley Starr granted summary judgment on Abboud’s text message claims. The court stated that “Agentra submitted evidence that the text messages sent to customers like Abboud are sent only after the customer speaks with a sales agent on the phone and exchanges information such as a phone number, payment method and terms for the products that she agrees to purchase,” Judge Starr wrote, “And, because it is undisputed that Abboud received the text messages, Agentra argues that this establishes that Abboud ‘voluntarily provided [her phone number] to the sales agent she spoke with’ and consented to receive the text messages.”


Abboud countered that she did not give her consent to receive the text messages. But she did not submit any evidence to that effect or any evidence that Agentra deviated from its standard consent practice in dealing with her. Moreover, the court did not make any assumptions about Agentra’s standard practice, Judge Starr noted, because Agentra provided evidence of it. Such routine practice evidence can achieve summary judgment when the opposing party fails to discard it with counterevidence, he added.


“Because Agentra provided competent summary judgment evidence showing that it is not liable for the text messages that it sent to Abboud and Abboud did not present contrary evidence, Agentra is entitled to judgment as a matter of law on Abboud’s text message claims,” the court said.


To read the memorandum opinion and order in Abboud v. Agentra, LLC click here.


Why it matters: Abboud serves as an important reminder that the maintenance of TCPA policies can be beneficial in mitigating liability. For instance, in Abbouddocuments reminding sales agents to inform call recipients that they will receive a text from the insurer were sufficient to achieve summary judgment on the text message claim.


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