Did You Consent to Robocalls Just by Giving Out Your Number? What Smith v. ExamWorks Means for You

September 26, 2026
Posted by AmyGinsburg

Most people assume a company needs real permission before it can blast their cell phone with prerecorded calls. A federal court in Maryland recently suggested that permission may be easier to give than you think. In some situations, simply giving your phone number to the company that calls you may be enough.

The same decision is also a warning about something most people never consider: what happens to your case if you get rid of your phone.

What the Case Was About

Smith v. ExamWorks has been in federal court in Maryland since 2021. ExamWorks scheduled independent medical examinations for people with insurance claims involving GEICO. It did this partly through non-emergency prerecorded calls to cell phones. The plaintiff, Michael Smith, got those calls. Court filings earlier in the case say his number reached GEICO through another person, not from Smith himself.

Smith sued under the Telephone Consumer Protection Act (TCPA), the federal law that generally bars prerecorded or artificial-voice calls to cell phones without the called person’s “prior express consent.” The TCPA allows $500 in statutory damages per illegal call, and up to $1,500 if the violation was willful. Smith asked the court to let him represent a class of everyone who got ExamWorks’ prerecorded calls without having given ExamWorks their number.

On September 21, 2026, the court refused to certify the class. The case can’t go forward as a class action, though that doesn’t necessarily end Smith’s own claim.

Issue #1: Does Giving Out Your Number Mean You Agreed to Robocalls?

The part of the ruling getting the most attention is what the court said about consent. Some people had given their phone numbers to ExamWorks during the scheduling process. The court suggested that under the plain language of the TCPA, consent attaches to the call, not to the technology used to make it. In other words, if you agreed to be called, you don’t also have to specifically agree to a prerecorded voice.

That reasoning isn’t entirely new. Since 1992, the Federal Communications Commission has taken the position that people who knowingly give their number to a business have generally invited calls at that number, unless they say otherwise. But there are important limits consumers should understand:

The scope of consent matters. Giving your number to schedule a medical exam is permission for calls about that exam. It isn’t blanket permission for anything the company, or anyone it shares your number with, wants to call about.
Marketing is different. Prerecorded telemarketing calls require prior express written consent, a signed agreement that clearly authorizes that kind of call. Just giving out your number doesn’t meet that standard.
Someone else giving out your number is different. If a relative, a friend, or another party in a claim gave out your number, that is generally not your consent.
Not every court agrees. Commentators note the reasoning is in tension with at least one other 2026 decision suggesting consent must cover the specific technology used. And because the court denied certification on other grounds, its consent comments may be treated as dicta, meaning later courts don’t have to follow them.

The takeaway: courts are taking a broad view of consent when you give your number directly to the caller for a related purpose. That makes it even more important to know how you can take consent back.

Issue #2: You Can Revoke Consent

Consent under the TCPA isn’t permanent. You can revoke it by any reasonable means: telling the caller to stop, replying “STOP” to a text, or sending a written request. FCC rules require callers to honor those requests within a set period, and the FCC is currently revising exactly how revocation works.

If you want the calls to stop:

Say it clearly. “Please stop calling this number” is enough. You don’t need special words.
Put it in writing if you can. A text or email creates a record.
Write down the date and time you revoked, and keep track of every call after that.

Calls that keep coming after a clear revocation are often the strongest TCPA claims.

Issue #3: Your Phone Is Evidence. Don’t Throw It Away.

The most striking part of Smith v. ExamWorks is why class certification failed. According to reports on the decision, Smith threw his cell phone into the Mississippi River while the case was pending. That destroyed evidence that could have shown which calls reached him, what they said, and what his call and message history looked like.

The court found he was not an adequate class representative. Someone who represents thousands of other consumers must protect the case for all of them. When the lead plaintiff has destroyed key evidence, the defense can spend the case attacking him instead of the calls, which creates a conflict with everyone else in the class.

This lesson applies to anyone who might bring a robocall, debt collection, or credit reporting claim:

Once you are thinking about legal action, your phone becomes evidence. Courts expect you to preserve it. Destroying, wiping, or “losing” it can hurt or even end your case, and can lead to sanctions.
Before you upgrade or trade in your phone, talk to your lawyer. A lawyer can arrange to preserve the data first.
Save what you can right now: screenshots of call logs, voicemails, texts, and any “STOP” messages you sent. Your carrier’s billing records can also back up your call history.
Don’t delete voicemails, even annoying ones. A prerecorded voicemail is often the best proof that the call used an artificial or prerecorded voice.

Issue #4: Class Actions Depend on the Person Leading Them

Many robocall cases are brought as class actions because each person’s damages are small but the total harm is large. A class action can only go forward if a court finds the lead plaintiff is typical of the group and able to represent it fairly. Smith shows that a case with a real legal issue can still fail as a class action because of problems specific to the person bringing it.

If you are asked to serve as a class representative, it is a real responsibility. You’ll need to preserve evidence, answer questions under oath, and put the class’s interests ahead of your own.

What Consumers Should Do

Be careful about who you give your cell number to, and why.
If a company is calling with prerecorded messages you don’t want, revoke consent clearly and keep a record.
Register on the National Do Not Call Registry (donotcall.gov) to limit telemarketing calls.
Keep your phone and its records intact if you think you have a claim.
Talk to a consumer protection attorney if the calls continue after you’ve told the caller to stop.

This article is for general information only and is not legal advice. TCPA rules vary by circumstance and are changing; consult an attorney about your specific situation.

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