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.

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The Background: The plaintiff received a call in September 2022 and was greeted by an artificial prerecorded voice that said “My name is Becky from Senior Benefits. How are you today?” The plaintiff replied, “Hello Robot. How are you?” The recording then proceeded to tell the plaintiff about the reason for the call and offered the opportunity to learn more.

• The plaintiff “played along” because he is a frequent recipient of these kinds of calls and wanted to put a stop to them. For that, he needed to determine the identity of the company that was calling him.
• The plaintiff stayed on the phone long enough to be transferred to three different individuals. The plaintiff asked the third representative to have his number placed on the defendant’s internal do not call list and to send him a copy of the company’s do not call policy. The representative did not ask for the plaintiff’s contact information, because she was not trained in the existence or usage of such a policy, according to the complaint.

The Claim: The technology that was used to make the call to the plaintiff has to be an ATDS because “it wold be illogical to dial a number manually, have Plaintiff answer the phone, and only then connect Plaintiff to a human being,” according to the complaint.

• The plaintiff accuses the defendant of violating Section 227 of the TCPA by sending calls to the plaintiff’s cell phone using an ATDS.
• Because the defendant made multiple calls to the plaintiff, it willfully and knowingly violated the TCPA, according to the complaint.
• The plaintiff also accuses the defendant of violating the TCPA by placing a call to the plaintiff’s residential phone, which was registered on the national Do Not Call registry.
• The defendant is also accused of violating the Florida Telephone Solicitation Act.

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