A District Court judge in Arizona has denied a defendant’s motion to dismiss and its motion to strike class allegations in a Telephone Consumer Protection Act class-action involving calls and a text message that were sent without the plaintiff’s permission.
The Background: The plaintiff, who phone number has been registered on the national Do Not Call list since 2007, received two calls and a text message from the defendant on September 16, 2022 that were marketing home equity loans and other products and services.
- The plaintiff contends it did not provide his number or consent to receiving calls and had no existing business relationship with the defendant.
The Ruling: At this stage of the proceedings, Judge Susan M. Brnovich of the District Court for the District of Arizona said its reasonable to infer that the plaintiff registered his number on the Do Not Call list.
- The defendant argued that it was impossible for the plaintiff to know the calls were solicitations because the plaintiff did not answer the calls, but the plaintiff countered that because he never provided his number to the defendant and the text message he received confirms that both the calls and the text were solicitations, and the judge agreed with the plaintiff.
- Judge Brnovich also agreed with the plaintiff that the defendant’s arguments about the class claims for a violation of the TCPA were premature. “Any challenge to damages cannot occur until after a verdict,” the judge wrote.
- Regarding the motion to strike the plaintiff’s class definition because it was too broad — the defendant said it failed to exclude calls made without consent and to individuals with an established business relationship — there are two other cases that certified classes based on roughly the same definition and whether the class can be certified in this case is “for a later motion,” the judge wrote.