ENERGY COMPANY DO NOT CALL LIST SETTLEMENT

businessman signing a contract

 

A class action settlement was reached in an energy do not call claim.  The claimants said calls soliciting energy items had been made to multiple cell phones violating the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”).   The case is Abramson v. Alpha Gas & Electric, (N.Y 2017),  Case No. 7:15-CV-05299-KMK.

The Court  notice states,
NOTICE OF PROPOSED SETTLEMENT OF CLASS ACTION. THIS NOTICE CONCERNS SETTLEMENT OF A LAWSUIT THAT MAY ENTITLE YOU TO RECEIVE A PAYMENT

This is a Notice of a proposed Settlement in a class action lawsuit Abramson v. Alpha Gas and Electric, LLC, United States District Court for the Southern District of New York, No. 15-CV-05299-KMK (the “Action”). The settlement would resolve claims against defendant Alpha Gas and Electric, LLC (“Alpha”) arising from telemarketing calls made by it to cellular telephone numbers in alleged violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”).

jshiffer_1410879333_Do-not-call
WHAT IS THE LAWSUIT ABOUT?
The lawsuit alleges that telemarketing calls made by Alpha to consumers’ cellular telephone numbers violated the TCPA. Alpha has asserted, as a defense in the Action, that it should not be held liable for the calls at issue. This settlement does not resolve that disputed issue, or the disputed question of whether the calls violated the TCPA. The Court has preliminarily certified this matter as a class action for settlement. You are a member of the Settlement Class if you are included in the following:
All persons in the United States who, from July 8, 2011 through November 10, 2016, who subscribed to, used, or who owned any of the phone numbers listed on the Class List and who received phone calls from any of the Released Parties using an automated telephone dialing system, or prerecorded voice, or who were listed on the Do Not Call list or otherwise did not consent to the receipt of such calls, or who otherwise have claims against the Released Parties arising under the TCPA or similar federal, state or local laws governing such matters, including without limitation the claims alleged in the Action,
including calls placed to cell phones without the recipients’ consent.

Here are some other sites discussing the class action,

http://www.manta.com/c/mbyf99h/alpha-gas-and-electric-llc
http://www.alphagastcpasettlement.com/Home.aspxhttp://www.city-data.com/forum/new-jersey/2039282-alpha-gas-electric-called-me-give.html
https://topclassactions.com/lawsuit-settlements/closed-settlements/359042-alpha-gas-electric-tcpa-class-action-settlement
http://www.classactionrebates.com/settlements/alpha-gas-electric
http://www.insidearm.com/news/00042418-grid-tcpa-class-action-settlement-www.law360.com/articles/861803/judge-gives-initial-ok-to-electric-co-s-1-1m-tcpa-www.law360.com/cases/559da853cc4ad176d4000001http://legalnewsline.com/stories/510630850-telemarketing-calls-bring-court-action-against-new-york-gas-company

Have you been a victim of unwanted calls.
Man in home office on telephone using computer smiling
Call (973) 598-1980 for a free consultation about your rights.

NEW JERSEY STATE REGULATIONS ON ENERGY SUPPLIERS AND DO NOT CALL LIST

jshiffer_1410879333_Do-not-call

KNOW YOUR RIGHTS/RIGHTS REGARDING THE “DO-NOT-CALL” REGISTRY

Residential Customer Rights Regarding Third Party Suppliers
The New Jersey Board of Public Utilities (BPU) and doing business in the State of New Jersey has a continuing legal obligation to comply with all applicable requirements

The Do-Not-Call Registry provided in the Federal Trade Commission Telemarketing Sales Rules CALL REGISTRY it is “an abusive telemarketing act or practice” for a telemarketer to engage in, or for a seller to cause a telemarketer to engage in, a telephone call to a person when:

that person previously has stated that he or she does not wish to receive an outbound telephone call made by or on behalf of the seller whose goods or services are being offered…; or
that person’s telephone number is on the “do-not-call” registry, maintained by the [Federal Trade] Commission…unless the seller
has obtained the express agreement, in writing, of such person to place calls to that person…or
has an established business relationship with such person, and that person has not stated that he or she does not wish to receive outbound telephone calls.
In addition to the establishment of a national Do-Not-Call Registry, the following are Federal Trade Commission rules aimed at reducing the number of telemarketing calls to your home:

Telemarketers are required to transmit Caller ID information and may not block their numbers.
Telemarketers must ensure that predictive dialers abandon no more than three percent of all calls placed and answered by a person. A call will be considered “abandoned” if it is not transferred to a live sales agent within two seconds of the recipient’s greeting.
Telephone solicitation calls before 8 am or after 9 pm are prohibited.
Anyone making a telephone solicitation must provide his/her name, the name of the entity on whose behalf the call is being made, and a telephone number or address at which you may contact that entity.
Company-specific do-not-call lists are available to consumers who wish to avoid telemarketing calls only from specific companies.
However, please note that the federal Do-Not-Call Registry does not prevent calls from organizations that you have an established a business relationship, gave prior written permission to call you, are not commercial, whose calls do not include unsolicited advertisements, and calls made by tax-exempt non-profit organizations.

Surprised brunette vietnamese woman talking on the phone

NEW JERSEY DO NOT CALL REGISTRY

Additionally, the New Jersey Do-Not-Call law is now in effect providing New Jersey residents additional protection from unsolicited and unwanted telemarketing sales calls. Pursuant to the law, the New Jersey Division of Consumer Affairs, not the Board of Public Utilities, has authority over telemarketers. Under the New Jersey law:

Telemarketers may not make sales calls to New Jersey residents who are on the federal Do-Not-Call registry.
Telemarketers who have not registered with Consumer Affairs may not call any New Jersey resident.
Telemarketers may not call New Jersey residents between the hours of 9 p.m. and 8 a.m.
Telemarketers may not intentionally block the use of caller identification.
Telemarketers or sellers that carry out “any plan, program or campaign” to sell merchandise to consumers in New Jersey must register with Consumer Affairs annually and disclose certain information about their business operations and principals.
Violators may receive penalties up to $10,000 for the first offense and up to $20,000 for each subsequent offense.
Most telemarketing calls are covered regardless of where the telemarketer is calling from.
Telemarketers and sellers must maintain in-house Do-Not-Call lists pertaining to “existing customers” who have said they do not want to receive sales calls from the telemarketers.
Telemarketers, at the beginning of every sales call, must disclose the name of person making the call as well as the name of the telemarketing company, the name of person or company the telemarketer is calling on behalf of and the purpose of the call.
How to Register
Consumers can register their home and cell phone numbers in the federal Do-Not-Call Registry administered by the Federal Trade Commission for free, and the numbers will remain in the Registry until they are removed or service is discontinued. Consumers can register on-line by going to http://www.donotcall.gov. To register by telephone, consumers may call 1-888-382-1222: for TTY call 1-866-290-4236. You must call from the phone number you wish to register.

If you are a New Jersey resident who has already signed up for the federal Do-Not-Call registry you need not do anything else. You’re already covered under New Jersey’s law.
How to File a Complaint
In addition to complaints alleging violations of the federal Do-Not-Call Registry, you may also file a complaint against a telemarketer who is calling for a commercial purpose (e.g., not charitable organizations) if:
The telemarketer calls before 8 AM or after 9 PM;
The telemarketer leaves a message, but fails to leave a phone number that you can call to sign up for their company specific do-not-call list;
You receive a telemarketing call from a company that you have previously requested not call you;
The telemarketing firm fails to identify itself; or
You receive a pre-recorded commercial message from someone with whom you do not have an established business relationship and to whom you have not given permission to call you.
You can file a complaint by telephone to 1-888-CALL-FCC (1-888-225-5322) voice or 1-888-TELL-FCC (1-888-835-5322) TTY, by fax to 1-866-418-0232, via our electronic complaint form, or mail. For the FCC to process your complaint you must either fill in the electronic form completely or otherwise indicate:

Your name and address;
The home phone number where you received the solicitation;
Identification of the individual or company whose products or services were being advertised or sold, and any phone numbers included in the call;
A description of the call;
Any phone number provided to allow you to “opt-out” of future calls;
Whether you or anyone else in your household gave the caller express prior permission to call;
Whether you have an established business relationship with the caller (specifically, whether you or anyone else in your household made any purchases of property, goods, or services from the company that called, or made any inquiry or filed an application with the company prior to receiving the call).

Man in home office on telephone using computer smiling
FREE CONSULTATION ON YOUR DO NOT CALL LIST VIOLATION CLAIM
Call (973) 598-1980

 

Credit Card Do Not Call List

Surprised brunette vietnamese woman talking on the phone
At the request of the Federal Trade Commission and the Florida Office of the Attorney General, a federal district court judge has entered eight orders against an intertwined web of Orlando-based individuals and companies that bombarded consumers with illegal robocalls from “Card Member Services,” pitching worthless credit card interest rate reduction programs.

In addition to imposing financial judgments, the orders permanently ban most of the defendants from robocalling, telemarketing, and providing debt relief services. The FTC alleges the scheme operated from 2011 until the court issued injunctions at the agencies’ request stopping the calls in mid-2015.

According to the FTC’s June 2015 complaint, filed jointly with the State of Florida, the defendants, doing business as Payless Solutions, illegally called thousands of consumers nationwide – including many seniors – claiming that their credit card interest rate reduction program would save consumers at least $2,500 in a short period of time and would enable them to pay off their debts more quickly. After convincing consumers to provide their credit card information, the defendants charged them between $300 and $4,999 up-front, but provided nothing in return.

The FTC and Florida AG alleged the defendants failed to provide consumers with the promised interest rate reductions or savings. Instead, some consumers received a package of financial education information they did not request or agree to pay for. In other cases, the defendants used consumers’ personal information to apply for new credit cards, presumably with low introductory interest rates, without their knowledge or consent.

Finally, the complaint charged the defendants with making many calls to consumers whose phone numbers are on the FTC’s National Do Not Call Registry, along with several other violations of the FTC’s Telemarketing Sales Rule and Florida’s Telemarketing and Consumer Fraud and Abuse Act.

Requirements for Telemarketers under Federal law

jshiffer_1410879333_Do-not-callAny entity making telemarketing calls must have a “written policy, available upon demand, for maintaining a do-not-call list.” 47 C.F.R. § 64.1200(d)(1). SCI has admitted that at the time the lawsuit was filed, it did not maintain a written “do not call” policy. Def.’s Answer, Dkt. No. 22, para. 42; Def.’s Mem. in Supp., Dkt. No. 34, Pg ID 392. Thus, questions of fact remain as to whether SCI violated 47 C.F.R. § 64.1200(d)(1) by not having a written policy for maintaining a do-not-call list.

All artificial or prerecorded voice telephone messages shall:

(1) At the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call. If a business is responsible for initiating the call, the name under which the entity is registered to conduct business with the State Corporation Commission (or comparable regulatory authority) must be stated;

(2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of such business, other entity, or individual. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges. For telemarketing messages to residential telephone subscribers, such telephone number must permit any individual to make a do-not-call request during regular business hours for the duration of the telemarketing campaign; and

(3) In every case where the artificial or prerecorded voice telephone message includes or introduces an advertisement or constitutes telemarketing and is delivered to a residential telephone line or any of the lines or telephone numbers described in paragraphs (a)(1)(i) through (iii), provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism, within two (2) seconds of providing the identification information required in paragraph (b)(1) of this section. When the called person elects to opt out using such mechanism, the mechanism, must automatically record the called person’s number to the seller’s do-not-call list and immediately terminate the call. When the artificial or prerecorded voice telephone message is left on an answering machine or a voice mail service, such message must also provide a toll free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice- and/or key press-activated opt-out mechanism and automatically record the called person’s number to the seller’s do-not-call list.

(c) No person or entity shall initiate any telephone solicitation to:

Surprised brunette vietnamese woman talking on the phone

(1) Any residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location), or

(2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government. Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator. Any person or entity making telephone solicitations (or on whose behalf telephone solicitations are made) will not be liable for violating this requirement if:

(i) It can demonstrate that the violation is the result of error and that as part of its routine business practice, it meets the following standards:

(A) Written procedures. It has established and implemented written procedures to comply with the national do-not-call rules;

(B) Training of personnel. It has trained its personnel, and any entity assisting in its compliance, in procedures established pursuant to the national do-not-call rules;

(C) Recording. It has maintained and recorded a list of telephone numbers that the seller may not contact;

(D) Accessing the national do-not-call database. It uses a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules, employing a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made, and maintains records documenting this process.

All artificial or prerecorded voice telephone messages shall:

(1) At the beginning of the message, state clearly the identity of the business, individual, or other entity that is responsible for initiating the call.

(2) During or after the message, state clearly the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of such business, other entity, or individual. The telephone number provided may not be a 900 number or any other number for which charges exceed local or long distance transmission charges. For telemarketing messages to residential telephone subscribers, such telephone number must permit any individual to make a do-not-call request during regular business hours for the duration of the telemarketing campaign; and

(3) In every case where the artificial or prerecorded voice telephone message includes or introduces an advertisement or constitutes telemarketing and is delivered to a residential telephone line or any of the lines or telephone numbers described in paragraphs (a)(1)(i) through (iii), provide an automated, interactive voice- and/or key press-activated opt-out mechanism for the called person to make a do-not-call request, including brief explanatory instructions on how to use such mechanism, within two (2) seconds of providing the identification information required in paragraph (b)(1) of this section. When the called person elects to opt out using such mechanism, the mechanism, must automatically record the called person’s number to the seller’s do-not-call list and immediately terminate the call. When the artificial or prerecorded voice telephone message is left on an answering machine or a voice mail service, such message must also provide a toll free number that enables the called person to call back at a later time and connect directly to the automated, interactive voice- and/or key press-activated opt-out mechanism and automatically record the called person’s number to the seller’s do-not-call list.

(c) No person or entity shall initiate any telephone solicitation to:

(1) Any residential telephone subscriber before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location), or

(2) A residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government. Such do-not-call registrations must be honored indefinitely, or until the registration is cancelled by the consumer or the telephone number is removed by the database administrator. Any person or entity making telephone solicitations (or on whose behalf telephone solicitations are made) will not be liable for violating this requirement if:

(i) It can demonstrate that the violation is the result of error and that as part of its routine business practice, it meets the following standards:

(A) Written procedures. It has established and implemented written procedures to comply with the national do-not-call rules;

(B) Training of personnel. It has trained its personnel, and any entity assisting in its compliance, in procedures established pursuant to the national do-not-call rules;

(C) Recording. It has maintained and recorded a list of telephone numbers that the seller may not contact;

(D) Accessing the national do-not-call database. It uses a process to prevent telephone solicitations to any telephone number on any list established pursuant to the  do-not-call rules,

HAVE YOU FACED UNWANTED CALLS.  CALL (973) 598-1980 for a Free Consultation on Your Do Not Call List Claim

Man in home office on telephone using computer smiling

ENERGY SUPPLIERS AND DO NOT CALL LIST


businessman signing a contract

New Jersey permits energy suppliers to compete with mainline utility companies like Jersey Center Power and Light and P S E & G.*  To sell electric generation service in New Jersey, electric power suppliers must be licensed by the New Jersey Board of Public Utilities (NJ BPU).  They must also be registered with the local public utility to sell electric generation service in that utility’s service area.

Below is a list of suppliers who are licensed with the NJ BPU and are registered to sell electric generation service in New Jersey.*  To sell their services, some companies have called customers some of whom who are registered on the Do Not Call List.   Consumers who received unsolicited calls can be entitled to compensation for their inconvenience. 

Licensed Electric Generation Suppliers & Consultants
(May 2017)

 

Contact the supplier directly to verify whether or not new customers are being accepted.

 

Supplier Name (& Green Power Providers) Phone No.
4 Choice Energy 1-888-565-4490
Adagio Energy 1-877-235-6708
AEP Energy, Inc 1-866-258-3782
Agera Energy LLC 1-844-692-4372
Aggressive Energy LLC 1-718-836-9222
Alpha Gas & Electric, LLC 1-888-636-3749
Ambit Energy 1-877-282-6248
American Power and Gas of NJ LLC 1-800-205-7491
American PowerNet Management 1-610-372-8500
APG & E (NJ), LLC 1-855-544-4895
Astral Energy LLC 1-888-850-1872
Blue Pilot Energy, LLC 1-877-513-0246
BOC Energy Services 1-800-247-2644
Calpine Energy Solutions, LLC 1-877-273-6772
Champion Energy Services, LLC 1-877-653-5090
CleanChoice Energy 1-888-444-9452
Clearview Electric, Inc 1-800-746-4702
Commerce Energy, Inc. 1-800-556-8457
Community Energy 1-866-946-3123
Constellation NewEnergy, Inc. 1-888-635-0827
Direct Energy Business LLC 1-888-925-9115
Direct Energy Services, LLC 1-888-548-7540
Discount Energy Group, LLC 1-800-282-3331
East Coast Power and Gas of New Jersey, LLC 1-800-545-9155
EDF Energy Services 1-877-432-4530
Eligo Energy NJ, LLC 1-888-744-8125
Energy.me 1-855-243-7270
Energy Plus Holdings LLC 1-866-824-9401
Energy Service Providers, Inc./ DBA – NJ Gas & Electric 1-866-568-0290
Energy Rewards 1-844-684-5506
ENGIE Resources 1-888-232-6206
Entrust Energy 1-888-521-5861
FirstEnergy Solutions Corp. 1-866-625-7318
First Point Power 1-888-875-1711
Frontier Utilities Northeast LLC 1-877 636-3450
Gateway Energy Services Corp. 1-800-313-8333
Great Eastern Energy 1-718-648-0900
Green Mountain Energy 1-844-245-9582
Harborside Energy, LLC 1-718-981-0851
Hudson Energy Services, LLC 1-877-HUDSON9
IDT Energy, Inc. 1-877-887-6866
Inspire 1-866-403-2620
Josco Energy Corp. 1-877-955-6762
Liberty Power Delaware LLC 1-866-POWER-99 (769-3799)
Liberty Power Holdings, LLC 1-866-POWER-99 (769-3799)
LifeEnergy 1-844-308-3631

Marathon Power, LLC 1-888-779-7255
MidAmerican Energy Services, LLC 1-800-432-8574
MP2 Energy NE LLC 1-832-510-1030
MPower Energy NJ LLC 1-877-286-7693
National Gas & Electric 1-888-442-0002
NextEra Energy Services NewJersey 1-800-882-1276
Nordic Energy Services, LLC 1-877-808-1022
North American Power & Gas, LLC 1-888-313-9086
NRG Retail Solutions 1-855-500-8703
PALMco 1-877-726-5862
Park Power 1-855-780-7275
Pepco Energy Services, Inc. 1-800-ENERGY-9
Plymouth Rock Energy, LLC 1-855-32-POWER
PSEG Energy Solutions LLC 1-877-430-1480
ResCom Energy LLC 1-888-238-4041
Residents Energy 1-(888) 828-RESI (7374)
Respond Power LLC 1-877-973-7763
SFE Energy NJ, Inc. 1-877-316-6344
SJ Energy Partners, Inc 1-800-695-0666
South Jersey Energy 1-800-266-6020
Sperian Energy 1-888-682-8082
Spring Power & Gas 1-888-710-4782
Star Energy Partners LLC 1-844-469-7827
Starion Energy PA Inc. 1-800-600-3040
Sterling Planet, Inc. 1-404-567-3033
Stream Energy 1-877-369-8150
Supreme Energy, Inc. 1-800-832-7090
Talen Energy Marketing 1-800-281-2000
Texas Retail Energy 1-866-532-0761
Think Energy 1-866-252-0078
Town Square Energy East, LLC 1-800-282-3331
TransCanada Power Marketing, Ltd. 1-877-MEGAWAT
TriEagle Energy 1-877-933-2453
UGI EnergyLink 1-877-729-0784
Verde Energy USA, Inc 1-800-388-3862
Viridian Energy 1-866-663-2508
XOOM Energy New Jersey, LLC 1-888-997-8979

 

 

Energy Consultant Name Phone No.
Avoca Engineering 1-732-465-1002
BidUrEnergy, Inc. 1-877-669-8243
Commercial Utility Consultants, Inc. 1-610-431-4400 ext. 115
Concord Engineering Group 1-856-427-0200
Energy Market Exchange 1-713-521-9797
EnergyWindow, Inc. 303-444-2366
EnergyConnect Inc 1-484-707-7619
EnerNoc, Inc. 1-888-363-7662
Enerwise Global Technologies 1-844-CPOWER1
Gabel Associates 1-732-296-0770
Good Energy, LP 1-866-955-2677
Long Distance Consultants, LLC 1-201-291-1901
Premiere Marketing 1-862-210-8770
Provident Energy Consulting, LLC 1-610-565-0633
T & M Associates 1-732-671-6400
TRC Energy Services 1-617-350-8639
Utility Answers LLC 1-844-332-5096

CALL 973 598-1980 FOR A FREE CONSULTATION ABOUT YOUR RIGHTS UNDER THE DO NOT CALL LIST LAW

Man in home office on telephone using computer smiling

 

 

*This list is those who have registered as suppliers and inclusion is not intended to indicate that each company has violated the provisions of the Do Not Call List Law.

Do Not Call List: Automatic Phone Dialers

Couple receiving bad news over phone

Companies making unsolicited calls sometimes deny the use of unauthorized computer equipment for automatic dialing.  In the following case, the Court rejected a motion to dismiss, articulating the legal standard.

________________________________________________________

Plaintiff’s four-count Amended Complaint asserts claims for negligent and knowing or willful violation of the TCPA for telephone calls made by an automatic telephone dialing system, and negligent and knowing or willful violation of the TCPA for calls made to those on the national Do Not Call Registry. (See generally Am. Compl.)
In support of their motion to dismiss, Defendants rely on documents outside the Amended Complaint, including: (1) a Lexis Nexis search showing Plaintiff’s alleged former address; (2) a log of Defendants’ telephone calls to Plaintiff; (3) transcripts and a CD of the conversations between Plaintiff and Defendants; (4) a screenshot of the online order summary showing Plaintiff’s enrollment with Defendants; (5) data from an electronic data interchange; and (6) an e-mail message from PSE&G. (ECF No. 25.) “As a general matter, a district court ruling on a motion to dismiss may not consider matters extraneous to the pleadings.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citing Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985)). “However, an exception to the general rule is that a document integral to or explicitly relied upon in the complaint may be considered without converting the motion [to dismiss] into one for summary judgment.” Id. (internal quotation marks omitted). None of the documents Defendants attach to their motion to dismiss were attached to, integral to, or explicitly relied on in the Amended Complaint, nor are they matters of public record. Accordingly, the Court will not consider those extraneous documents or the arguments Defendants make that rely on those documents.

Defendants’ only other argument in support of dismissal is that Plaintiff failed to plead any factual content to allow the Court to draw a reasonable inference that Defendants used an automatic telephone dialing system. Plaintiff, however, alleged that after he answered the calls “there was a brief pause before a live operator got on the line and began talking.” (Id. ¶¶ 22, 29.) This factual allegation is sufficient to state a plausible claim for relief. See Connelly v. Hilston Grant Vacations, No. 12-599, 2012 WL 2129364, at *1 (S.D. Cal. June 11, 2012) (denying a motion to dismiss for failure to state a claim because allegation of delay prior to a live person answering the telephone was sufficient to support a reasonable inference that the defendant used an automatic telephone dialing system); Trumper v. GE Capital Retail Bank, 79 F. Supp. 3d 511, 513 (D.N.J. 2012) (distinguishing the facts of Connelly and dismissing a plaintiff’s TCP A claim for failing to allege any facts that would support an inference that an automatic telephone dialing system was used). Accordingly,
IT IS on this 29th day of March 2016, ORDERED that Defendants’ motion to dismiss (ECF No. 25) is DENIED.
/s/_________
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE
______________________________________________

Call the Law Offices of Howard A. Gutman , 973-598-1980, for free consultation on your Do Not Call List claim.

 

Text Messages as Violating Do Not Call List

Do unsolicited text messages “count” as violating the Do Not Call List?  The law is still evolving.

__________________________________________________

 

867 F.Supp.2d 835 (2012)

Jonathan BAILEY
v.
DOMINO’S PIZZA, LLC.

Civil Action No. 11-04.  United States District Court, E.D. Louisiana.

ELDON E. FALLON, District Judge.

 

I. Background

This putative class action arises out of alleged unsolicited cellular phone text messages sent by Defendant, Domino’s Pizza LLC, to Plaintiff Jonathan Bailey and other Louisiana recipients. Plaintiff alleges that he received three unsolicited text messages on his cellular phone advertising discounts on Domino’s Pizza products. The last message was allegedly sent on April 3, 2009. He filed suit in this Court on December 22, 2010, asserting violations of the Telephone Consumer Protection Act and associated regulations. The Complaint proposes a class action on behalf of “[a]ll persons in the state of Louisiana who, within the last four years, received a text message advertisement on their cellular telephone placed or transmitted by or on behalf of Domino’s Pizza LLC without the subscriber’s express consent.”

<snip>

 

IV. Conclusion

For the foregoing reasons,

IT IS ORDERED that Plaintiff’s Motion for Reconsideration is GRANTED. The Court’s Order and Reasons of April 27, 2011 (Rec. Doc. 42) and Judgment (Rec. Doc. 43) are VACATED. Defendant’s Motion to Dismiss (Rec. Doc. 15) is GRANTED only with respect to Plaintiff’s claims for violations of 47 C.F.R. § 64.1200(d) and (e), and DENIED in all other respects. This case is REOPENED for further proceedings.

______________________________________________

Call the Law Offices of Howard A. Gutman, 973-598-1980, for free consultation on your Do Not Call List claim.

Interplay between Do Not Call List and Collection Practices

What happens if a debt collector repeatedly calls?  That will likely lead to claims under the Fair Debt Collection Practices as this case demonstrates.

___________________________________________________

955 F.Supp.2d 1288 (2013)

Stephanie FINI, Plaintiff,
v.
DISH NETWORK L.L.C., Defendant.

Case No. 6:12-cv-690-Orl-22TBS.

ORDER

ANNE C. CONWAY, District Judge.

 

I. BACKGROUND

This case concerns a series of calls by Defendant to Plaintiff’s personal cell phone concerning the debt of a third person with whom Plaintiff had no relationship. The facts are relatively simple, though disputed in at least one key respect. Plaintiff’s Motion for Summary Judgment pertains only to fourteen calls, admitted by Defendant,  that allegedly violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”). Defendant’s Motion seeks Summary Judgment with respect to liability for all calls alleged by Plaintiff under the TCPA as well as her claim under the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq. (“FCCPA”). Although Defendant admitted to making fifteen calls (fourteen of which were relevant), it claims that Plaintiff lacked standing to sue under the TCPA for any calls, including the admitted ones, and strenuously disputes the existence of any calls beyond those that were admitted.

A. Facts Pertinent to Plaintiff’s Motion

Plaintiff is the “owner, regular user and possessor” of a cell phone, initially acquired more than three years ago, with the assigned telephone number ending in 4239 (“Plaintiff’s phone”).  The phone company lists Plaintiff’s husband, John, as the service subscriber for Plaintiff’s phone, but Plaintiff asserts that both she and John are responsible for their joint wireless phone bills. (Id. at p. 3; Pl.’s Mot. Ex. 3 (Doc. No. 42-3), at p. 1.) Defendant admitted to placing fourteen relevant calls to Plaintiff’s phone via an automated dialing system and prerecorded message, (Def.’s Mot. Summ. J. (Doc. No. 46), at p. 6); Plaintiff contends that more calls were made (Pl.’s Mot. Partial Summ. J. at p. 3.).

Plaintiff received the calls because one of Defendant’s subscribers, JH, provided Plaintiffs phone number as his own in his initial contract for service with Defendant.) JH consented to receive calls at that number from Defendant, which has an organized system for reminding customers, via automatic dialing and prerecorded messages, to pay their bills when they fail to do so. (Id. at pp. 5-7.) According to Defendant, JH fell behind on his payments on August 17, 2011, and this triggered a call to Plaintiff’s phone on August 18 (Id. at pp. 8-9.) Defendant claims to have autodialed Plaintiff’s phone thirteen more times between August 18 and December 21, 2011. (Id. at pp. 9-11.) During that period, Plaintiff or her husband called Defendant at least three times; Defendant claims that on two occasions, Plaintiff’s husband requested to be placed on the “Do Not Call” list (which Defendant maintains only for telemarketing purposes) and on a third occasion to have Plaintiff’s phone number “suppressed.” (Id. at pp. 9-10.) The final call occurred on December 21, 2011, one month after this third request. (Id. at p. 11.) Plaintiff saved a voicemail left by Defendant during that call. The message was transcribed to state the following:

This is an important message from Dish Network, your satellite TV provider. We have made several attempts to contact you regarding the payment of your account balance. This is a final notification regarding your outstanding account balance prior to service interruption. To continue your monthly services and avoid collection of early termination fees, please pay the total amount due shown on your last statement immediately by logging into dish.com or call 1-866-263-1911. Thank you for being a valued Dish Network Customer.

(Pl.’s Compl. at ¶ 19.)

Defendant maintains a “late payment reminder system” that, apparently automatically, calls customers with unpaid invoices once or twice per week for about a month after payment on their invoices is due. (Id. at p. 7.) The reminder calls stop once the customer becomes current on his account, but resume should the customer fall behind once again. (Id.) JH, Defendant’s actual customer who supplied Plaintiff’s phone number as his own, had unpaid invoices from August 17, 2011 until October 23, 2011, a

In her Complaint, Plaintiff claimed to have received approximately 55 calls from Defendant, playing the same or similar message each time, starting in June 2011 and continuing until December 2011. (Pl.’s Compl. (Doc. No. 2), at ¶¶ 19-21.) Plaintiff arrived at this number because she believes that she received a minimum of four calls per month, “not including the calls she hung up on.” (Pl.’s Resp. (Doc. No. 53) at p. 7.) At the close of discovery, the only evidence positively supporting this claim came from the deposition testimony of Plaintiff and her husband. (See id. at pp. 6-8.) Their testimony, in turn, is based purely on their own recollections of when they received calls. (S. Fini Dep. (Doc. No. 42-1) at p. 55.)[3] Their testimony is vague as to who actually received those calls: according to Plaintiff’s husband, he answered her phone “at least ten (10) times.” (Pl.’s Resp. at p. 7; J. Fini Dep. (Doc. No. 42-2), at pp. 20-22.)

Plaintiff attempts to cast doubt on the accuracy of Defendant’s claim that it only called Plaintiff’s phone fourteen times by identifying three purported flaws in Defendant’s call recording system. First, she notes that “Defendant did not consider its autodialer calls `delivered’ to Plaintiff’s cellular telephone number until the call was dialed, answered by a live person or Plaintiff’s answering machine, and the complete prerecorded voice message was played in its entirety.” (Pl.’s Resp. at p. 2.) Second, Plaintiff extracted from the deposition of one of Defendant’s employees that “Defendant attempts up to four (4) calls a day until a prerecorded voice message is `delivered’ to the recipient of the call.” (Id. at p. 3 (citing Picchione Dep. (Doc. No. 55-1), at p. 15.)) Finally, Plaintiff points out, the evidentiary value of Defendant’s account 1292*1292 notes for JH’s account (see Def.’s Mot. at Ex. K) depends on the “accuracy and detail” with which Defendant’s employees kept track of account activity, and these employees’ failure to timely remove Plaintiff’s phone number from JH’s account does not inspire confidence in their competence. (Pl.’s Resp. at p. 3.)

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Based on the foregoing, it is ordered as follows:

1. Plaintiff Stephanie Fini’s Motion for Partial Summary Judgment (Doc. No. 41), filed December 13, 2012, is DENIED.

2. Defendant Dish Network L.L.C.’s Motion for Summary Judgment (Doc. No. 46), filed December 17, 2012, is DENIED.

3. Defendant’s Motion for Hearing (Doc. No. 56), filed January 7, 2013, regarding the Summary Judgment motions is DENIED. The issues are clearly articulated in the parties’ filings before the Court.

4. Plaintiff’s Motion for leave to file a Reply (Doc. No. 74) regarding her Notice of Supplemental Authority is DENIED. The case submitted as supplemental authority speaks for itself.

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Call the Law Office of Howard Gutman, 973-598-1980, for free consultation on your Do Not Call List claim.

Do Not Call List and Electronics Store Solicitation

businessman signing a contract

Chesbro v. Best Buy Stores, 705 F.3d 913 (2012)

Case Description below.  The Court allowed Do Not Call claims following a purchase at an electronics store.

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NOONAN, Circuit Judge:

Michael Chesbro, on behalf of himself and a class of similarly situated plaintiffs, argues that a series of automated telephone calls placed to his home by Best Buy violated the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, and the Washington Automatic Dialing and Announcing Device Act (“WADAD”), Wash.Rev.Code § 80.36.400. The district court granted summary judgment in Best Buy’s favor. We reverse and remand for further proceedings.

Factual and Procedural History

Plaintiff Michael Chesbro purchased a computer from Best Buy in 2008. At the time of the purchase, he signed up for a no-interest payment plan to finance the cost of the computer. He filled out paperwork and provided his contact information, including his telephone number. The parties dispute whether, at the time of purchase and when opting for the credit plan, Chesbro enrolled in Best Buy’s Reward Zone Program (“RZP”). Best Buy claims that it obtained his signature; Chesbro maintains that, if so, he did not know that he was being enrolled in the RZP or know what the RZP was.

The RZP allows customers to earn points toward certificates — coupons with a $5 value for every $250 spent — that can be applied toward future purchases at Best 916*916 Buy. Best Buy contends that, as an RZP member, Chesbro consented to the terms of the RZP Privacy Policy, which authorizes Best Buy to contact program members with program-related communications. Best Buy states that, though RZP members may opt out of receiving marketing communications regarding the program, Best Buy may still contact members with program-related communications, such as membership information.

Chesbro received many automated “robot” calls from Best Buy following his July 2008 computer purchase. He estimates that he received “more than five, less than a dozen” calls from Best Buy during this period; he could identify the caller from the caller identification feature on his phone. During the period at issue, Chesbro maintains that he was registered on the national “Do Not Call” (“DNC”) list.

On November 12, 2008, Chesbro complained to the Washington Attorney General’s Office (“AGO”) regarding a call that he received on November 11. Best Buy concedes that it made this November 11 automated call but argues that the call was a courtesy message alerting Chesbro to the looming expiration of his RZP certificates. Chesbro filed a class-action complaint in Washington state court alleging federal and state violations. Best Buy removed the case to federal court under the Class Action Fairness Act of 2005, 28 U.S.C. § 1453, asserting an amount in controversy exceeding $5,000,000. Best Buy filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), which the court converted into a motion for summary judgment under Rule 12(d). The court denied Chesbro’s motion for a continuance under Rule 56(d) and granted summary judgment in Best Buy’s favor. This appeal followed.

We review a grant of summary judgment de novo. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc). We determine “whether, viewing the evidence in the light most favorable to the nonmoving party, there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id.

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Rule 56 Claim

In light of our reversal, we need not reach Chesbro’s remaining claim regarding the denial of a continuance.

In sum, these calls were aimed at encouraging listeners to engage in future commercial transactions with Best Buy to purchase its goods. They therefore constituted unsolicited advertisements, telephone solicitations, and telemarketing within the meaning of the TCPA, the WADAD, and the WCPA.

REVERSED and REMANDED.

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Call the Law Office of Howard Gutman, 973-598-1980, for free consultation on your Do Not Call List claim.

Do Not Call Registry: Federal Law

Explanation

The federal law creates a Do Not Call Registry and companies violating that law may be subject to penalties.  We accept claims under the Do Not Call Registry.

§6151. National Do-Not-Call Registry

(a) Authority The Federal Trade Commission is authorized under section 6102(a)(3)(A) of this title to implement and enforce a national do-not-call registry. (b) Ratification The do-not-call registry provision of the Telemarketing Sales Rule (16 C.F.R. 310.4(b)(1)(iii)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

§6152. Telemarketing Sales Rule; do-not-call registry fees
(a)  The Federal Trade Commission shall assess and collect an annual fee pursuant to this section in order to implement and enforce the ‘‘do- not-call’’ registry as provided for in section 310.4(b)(1)(iii) of title 16, Code of Federal Regulations, or any other regulation issued by the Commission under section 6102 of this title.
(b) Annual fees  The Commission shall charge each person who accesses the ‘‘do-not-call’’ registry an annual fee that is equal to the lesser