Hi Folks! We just saw an interesting complaint filed, where the plaintiff claims he revoked his consent to be contacted by a debt collector.

Generally, debt-collection-related TCPA lawsuits are at an all-time low, especially in the Ninth Circuit. However, Plaintiff Aaron Maxwell brought a complaint against First National Bank of Omaha for three different claims relating to its debt collection attempts, including a violation of the automatic telephone dialing system (“ATDS”) provisions of the TCPA. Maxwell v. First National Bank of Omaha, 2:25-cv-00652 (C.D. Cal. filed January 27, 2025). Plaintiff alleges that he revoked his consent to be contacted via a “certified notice” sent to Defendant. Id. The “certified notice” was a letter from Plaintiff’s counsel confirming that he represented Plaintiff and advising Defendant to no longer contact the Plaintiff. Id.

The de facto rule is that consumers may revoke TCPA consent through any reasonable means. New revocation rules—unimpacted by the 11th Circuit’s decision to strike down 1:1 consent requirements—are coming into effect April 11, 2025, which will codify the reasonable revocation rule into 47 C.F.R. § 64.1200, among additional changes.

It appears that a certified notice sent on Plaintiff’s behalf constitutes reasonable means through which to revoke consent.

Still, Maxwell v. First National Bank of Omaha is interesting because debt collectors have not been subject to many ATDS lawsuits in recent years, especially in the Ninth Circuit, as the Supreme Court in Facebook, Inc. v. Duguid and Ninth Circuit (subsequently) in Borden v. eFinancial, LLC have both held that an ATDS must generate random numbers—although those definitions are strangely inconsistent.

In any case, this is a TCPA lawsuit against a debt collector for violating the ATDS provisions. For debt collectors, courts within the Ninth Circuit have found that debt collection attempts are incompatible with ATDS usage because debt collectors do not generate random numbers. See McDonald v. Navy Federal Financial Group, 2023 WL 5797724 (D. Nev. Sept. 7, 2023) (finding implausible plaintiff’s claim that she was contacted by a debt collector using an ATDS).

It will be interesting to see how the court treats Plaintiff’s TCPA ATDS claim in this action. It seems that the ATDS claim should be dismissed, but courts within this circuit have gone the other way in recent years—even for debt collectors.