Quick one for you this morning TCPAWorld.
Assurance IQ was recently sued in a TCPA class action. The complaint alleged it made calls using a prerecorded voice message without consent and that it may have violated the TCPA willfully in doing so (entitling Plaintiff to treble damages.)
Well in Blair v. Assurance, IQ 2023 WL 6622415 (W.D. Wash. Oct. 11, 2023) the Court refused to throw out the case–finding that allegations of prerecorded calls without consent were sufficient–but did toss claims that Assurance had violated the TCPA willfully:
Blair appears to seek treble damages under Count I and Count II of his amended complaint. Dkt. No. 18 at 14–15 (Count I seeks “a minimum of $500 in damages, and up to $1,500 in damage” per violation, whereas Count II expressly demands “treble damages”). Assurance IQ argues that Blair’s amended complaint “makes no allegation that [its] alleged conduct was willful and knowing.” Dkt. No. 20 at 7 (emphasis omitted). At this juncture, the Court agrees. Nowhere does Blair allege that Assurance IQ’s statutory violations were willful or knowing. He instead claims that, “[t]o the extent [Assurance IQ]’s misconduct is determined to be willful and knowing, the Court should … treble the amount of statutory damages recoverable by the members of the Do Not Call Registry Class.” Dkt. No. 18 at 15–16. This is insufficient. The Court therefore dismisses Blair’s claim for treble damages.
This is a nice little ruling.
While there is little doubt the allegations here were insufficient–there really were none–it is rare a court will dismiss a request for damages as if it were a separate claim. So this was a nifty move by Assurance’s lawyers and I like it!
Unfortunately the Court went on to deny Assurance’s bifurcation motion determining that separating discovery into phases would only complicate matters–which is just not true in TCPA cases. But… you can’t win them all. (Allegedly.)