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State Do Not Call

August 2022 - Call Compliance News

A California court has denied Realogy’s request to seek reconsideration of an order certifying a class of recipients for calls regarding real estate. Bumpus v. Realogy Brokerage Group, LLC.

Comment: Plaintiffs are potentially requesting more than $200 million in damages for illegal prerecorded calls.

A California court has enforced an arbitration clause against a plaintiff who clicked “See my Rates”, holding the arbitration language was sufficiently clear and conspicuous on the website where Plaintiff provided her information. Pizarro v. QuinStreet, Inc.

Comment: Please call if you’d like advice regarding enforceable arbitration clauses. We would be happy to review your website or documents and provide advice on an enforceable arbitration clause.

A Florida court has allowed a case under the state’s “mini-TCPA” to proceed against Humana for texts it sent after the Plaintiff replied “STOP” numerous times. Calvin v. Humana, Inc. The Court rejected Humana’s argument that the Plaintiff used his phone solely for business purposes and that the texts were not for marketing purposes.

Comment: Any text campaign should honor “STOP” requests.

A Massachusetts court has certified a class of persons who received emails, telephone calls, and texts offering help with an application for Social Security Disability income benefits in exchange for a percentage of the benefits. Thrower v. Citizens Disability, LLC. The Defendant claimed that it lacked records regarding the leads it purchased and then called. Therefore, the class was unascertainable. The Court ruled the argument “must fail on its face; a Telephone Consumer Protection Act (“TCPA”) defendant’s failure to maintain adequate records is not a legitimate basis for denying certification.”

Comment: The TCPA and Telemarketing Sales Rule (“TSR”) lay out clear record keeping requirements which I would be happy to share with you and discuss how proper record keeping can protect your business from claims like this one.

A Michigan court has approved attorneys’ fees in a class action settlement in the amount of 25 percent of the class recovery. Lyngaas v. Curaden AG. The case involved unsolicited faxes received by a dental practice.

North Carolina
A North Carolina court has ruled that a customer can revoke express consent under the TCPA and that a corporation enjoys the same ability to revoke consent that an individual has. In re: Weber.

A Texas court has held a plaintiff could sue a Florida company in Texas based on two allegedly illegal text messages. Pepper v. Stress Free Health Options, Inc. The plaintiff alleged the text messages violated the national “do-not-call” registry.

Comment: Some courts have found one text to be insufficient for the court to have jurisdiction, but this court found two text messages could support a lawsuit.

The authors make every attempt to provide current, accurate information, but Telemarketing ConnectionS® is not intended to be a substitute for legal counsel, and readers should not use it in lieu of obtaining knowledgeable legal, or other professional, counsel expert in the field of commercial telemarketing law. References in Telemarketing ConnectionS® do not constitute endorsement by Copilevitz & Canter, L.L.C. or Telemarketing ConnectionS®. January 1, 2005, Copilevitz & Canter, L.L.C.
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