Hello all! I hope you all enjoyed the fun pictures and videos from the Summit the past couple of days. It’s always a pleasure getting to meet new people at these conferences and of course, learning from the one and only Czar. BTW, how awesome was his birthday cake? It couldn’t have been any more on brand. I loved it.

Anyways, let’s get to it.

Another TCPA ruling just came out the other day and I can’t say I am too surprised about this one.

By way of background, Plaintiff Kristina Williams went to a SmileDirectClub to buy clear teeth aligners. An employee of SmileDirectClub presented her with a retainer installment agreement which she was told she would incur no obligations from, and the price terms were not final. Specifically, in the contract, it stated, “should and only if, you elect to utilize our payment plan…you are hereby agreeing the terms, conditions, interest rates and fees.” Attached to the contract was a TCPA form in which Williams consented to receive phone calls by “any dialing equipment (including a dialer, automatic telephone dialing system, and/or interactive voice recognition system) and/or artificial or prerecorded voice or message.” Notably, Williams signed both the contract and the TCPA consent form, but did not end up purchasing clear teeth aligners.

The very next day, SmileDirectClub notified Williams that her teeth aligners were being made and she was being charged an installment payment of $250. After learning this, Williams disputed the contact and refused to pay.

AmerAssist, a debt collection company, acquired Williams alleged debt. In trying to collect payment, AmerAssist called Williams at least four times. Williams responded and told AmerAssist that she did not owe any money and to stop calling her.

Williams never received a copy of the retainer installment agreement or the clear teeth aligners.

Unsurprisingly, Williams sued AmerAsssist for, amongst others, violation of the TCPA. Williams alleged AmerAssist violated the TCPA by placing phone calls to her using an ATDS without her prior express written consent.

AmerAssist moved to dismiss Williams TCPA claim arguing Williams provided her express written consent when she signed the TCPA consent form. Additionally, AmerAssist argued they had no notes regarding Williams’ revocation during any of the calls. The Court did not find these arguments persuasive. How? The Court reasoned that because Williams expressly alleged in the Complaint that she did revoke her consent, they must accept this allegation as true. Plaintiffs, time and time again, assert barely enough to pass the pleadings stage, but courts find it enough. Unfortunately, that is was happened here. AmerAssist even had a signed TCPA consent form by Williams to be contacted and that was not enough to beat a motion to dismiss.

Ultimately, the Court in the Northern District of Alabama denied Defendant AmerAssist’s Motion to Dismiss Williams’ TCPA claim.


1 Comment

  1. that’s why you answer the complaint, attach the evidence you need, and file a JMOP under 12(c)

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