WILLIAMSPORT – A Central Pennsylvania man has named an additional defendant in a class action lawsuit against the Accident Attorneys of America, alleging that the firm has violated the Telephone Consumer Protection Act (TCPA) with its unsolicited phone calls to potential clients.
Gerard Jackson (individually and on behalf of all others similarly situated) filed suit in the U.S. District Court for the Middle District of Pennsylvania on March 13, 2023 versus Fonbuena Law Firm, PLLC (doing business as “Accident Attorneys of America”) of Las Vegas, Nev.
The TCPA makes it unlawful “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or pre-recorded voice…to any telephone number assigned to a…cellular telephone service.”
Furthermore, in 2012, the Federal Communications Commission required prior express written consent for all autodialed or pre-recorded telemarketing calls (robocalls) to wireless numbers and residential lines.
“Plaintiff is, and at all times mentioned herein were, a ‘person’ as defined by 47 U.S.C. Section 153(39). Accident Attorneys of America offers legal services. To generate leads, Accident Attorneys of America makes telemarketing calls to consumers who have never had a relationship and who have never consented to receive their calls,” the suit stated.
“Plaintiff’s telephone number, (814)-XXX-5007, is registered to a cellular telephone service. The number was also registered on the National Do Not Call Registry prior to receiving the calls at issue. Despite this, the plaintiff received a pre-recorded call from the defendant on Jan. 25, 2023. The pre-recorded message stated: “Were you a Marine stationed at Camp Lejeune from the years 1958 to 1986? If so, press one.”
The suit added that he call was clearly pre-recorded because: (A) it was non-personalized, (B) there was a delay before the message played, (C) the message indicated it was being sent en masse, (D) there was a ‘click’ before the robot voice began and (E) the pre-recorded message had an option to press a button in response.
“Mr. Jackson spoke to a Cody Vega, who offered the defendant’s legal services. Mr. Vega identified himself as working for the defendant. Mr. Vega then sent an e-mail with an offer for the defendant’s services as a result of the call,” the suit said.
The defendant firm answered the complaint on May 11, 2023, denied that it violated the TCPA and presented 27 separate affirmative defenses.
“Plaintiff’s claims fail because this Court lacks personal jurisdiction over defendant. Defendant is not subject to the general personal jurisdiction of this court because it is not ‘at home’ in Pennsylvania. Nor is it subject to specific personal jurisdiction because defendant did not purposefully avail itself of this forum. Any alleged calls at issue were placed by a third party for which defendant is not vicariously (or otherwise) liable. The complaint fails to allege facts sufficient to state a cause of action against defendant. For example, plaintiff failed to show that the calls allegedly received were those for ‘which the called party is charged’ as required by the TCPA. Plaintiff and the putative class members are barred from asserting claims in this forum to the extent their claims are subject to a binding arbitration agreement and an agreement to arbitrate their disputes on an individual (non-class) basis, depriving this Court of jurisdiction over such claims, and rendering venue in this Court improper,” per those defenses, in part.
“Plaintiff and the putative class members are barred from asserting their claims to the extent the calls at issue were made with the recipients’ prior express permission and/or consent. Plaintiff is barred from asserting his claims, in whole or in part, by the doctrines of acquiescence, estoppel, waiver and/or unclean hands. For example, plaintiff and the putative class members cannot assert claims under the TCPA against defendant to the extent they voluntarily provided telephone numbers. To the extent plaintiff alleges TCPA violations that fall outside the applicable statutes of limitations, plaintiff’s claims are barred.”
The defendant continued that it did not engage in knowing or willful misconduct, did not engage the numbers it called in bad faith and did not charge the owners of those numbers for the calls that were made.
UPDATE
On Jan. 25, the plaintiff filed an amended complaint naming a new defendant, Digital Media Solutions, LLC of Florida.
“Plaintiff’s telephone number, (814)-XXX-5007, is registered to a cellular telephone service. The number was also registered on the National Do Not Call Registry prior to receiving the calls at issue. Despite this, the plaintiff received a pre-recorded call from the defendant on Jan. 25, 2023. The call was from Digital Media Solutions. The pre-recorded message stated: ‘Were you a Marine stationed at Camp Lejeune from the years 1958 to 1986? If so, press one’. The call was clearly pre-recorded because (a) it was non-personalized (b) there was a delay before the message played (c) it indicated it was being sent en masse and (d) there was a ‘click’ before the robot voice began; (e) the pre-recorded message had an option to press a button in response,” the amended complaint stated.
“DMS, or a sub-vendor for which it was responsible, called plaintiff without plaintiff’s prior express written consent. DMS knew when it or its sub-vendor called plaintiff that plaintiff had not provided prior express written consent. Mr. Jackson spoke to a Cody Vega, who offered AAA’s legal services. Mr. Vega identified himself as working for AAA. Mr. Vega then sent an e-mail with an offer for AAA’s services as a result of the call.”
For a lone count of violating the TCPA, the plaintiff is seeking the following relief:
• Injunctive relief prohibiting defendant from calling telephone numbers advertising their goods or services, except for emergency purposes, using a pre-recorded message in the future;
• That the Court enter a judgment awarding plaintiff and all class members statutory damages of $500 for each violation of the TCPA and $1,500 for each knowing or willful violation; and
• An order certifying this action to be a proper class action pursuant to Federal Rule of Civil Procedure 23, establishing an appropriate class the Court deems appropriate, finding that plaintiff is a proper representative of the class, and appointing the lawyers and law firms representing plaintiff as counsel for the class;
• Such other relief as the Court deems just and proper.
The plaintiff is represented by Jeffrey M. Bower of Bower Law Associates, PLLC of State College and Anthony I. Paronich of Broderick Law in Hingham, Mass.
Defendant Fonbuena Law Firm, PLLC is represented by Matthew A. Lipman of McElroy Deutsch Mulvaney & Carpenter in Philadelphia, plus Abigail Howd and Ryan Watstein and of Watstein Terepka in Atlanta, Ga.
U.S. District Court for the Middle District of Pennsylvania case 4:23-cv-00438
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com