Setback for plaintiffs in class action against Verde Energy for alleged TCPA violations

By Gabriel Neves | Dec 27, 2018

PHILADELPHIA -- Customers who have allegedly been getting unauthorized calls from an electricity company have suffered a loss in court.

Judge Wendy Beetlestone, on the bench of the U.S. District Court for the Eastern District of Pennsylvania, issued a 23-page ruling on Dec. 14, granting partial summary judgment and denying a motion to strike, and another summary judgment in the lawsuit filed by Brian Richardson, Michelle Hunt, John White and Jacqueline Bowser against Verde Energy USA Inc. 

The group sued Verde Energy, alleging they received unwanted telemarketing calls as the company violated the Telephone Consumer Protection Act (TCPA). Those violations prompted the four consumers to file a national class-action suit against the provider.

Verde Energy offered low-priced energy to customers, using advertising agencies and telemarketing companies to attract new users. The agencies gathered customer information through websites, and forwarded those to the telemarketing companies, who made the calls. A calling software, called CallShaper Predictive Dialer, was used in the calls.

"The operation of the CallShaper Predictive Dialer is at the heart of this dispute," the ruling said. "All parties agree that Transparent BPO used the CallShaper Predictive Dialer to call plaintiffs’ cellular phones to market defendant’s service. Each plaintiff received multiple calls, totaling 75 in all. It is further undisputed that the CallShaper Predictive Dialer allowed Transparent BPO to 'load lists of targeted leads to be called' and call those numbers."

The parties disagreed as to whether the CallShaper Predictive Dialer had the inherent capability to produce telephone numbers to be called using a random or sequential number generator, and plaintiffs dispute several details concerning the calls placed using the CallShaper Predictive Dialer—most notably, whether the calls were delivered with an artificial or pre-recorded message.

In her ruling, Beetlestone partially granted a summary judgment filed by Verde Energy, stating that the telemarketers acting on the company's behalf were not using an Automatic Telephone Dialing System (ATDS), as required to portray a TCPA violation.

Beetlestone denied summary judgment against Richardson's consent to receive calls, and for most of the calls made. She also denied a motion to strike the suit, stating that "defendant has failed to establish that striking plaintiffs’ remaining class allegations is appropriate," adding that "the court declines to engage in the 'rigorous analysis' required to determine whether class certification is appropriate without full briefing on class certification," regarding the class action requirements.

The U.S. District Court for the Eastern District of Pennsylvania Case No. is 15-6325.

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