Just awesome news here.
A putative TCPA class action brought by serial litigant Todd Bank recently met with a swift and certain demise at the hands of Countess Jenniffer Cabrera and its another great victory of a firm client that deserved to win!
While a victory of this sort is always sweet, earning a complete dismissal of a putative TCPA class action at the pleadings stage (i.e. right out of the gate) is simply a massive win–both substantively and in terms of cost savings for a very deserving client.
In Bank v. Alleviate Tax, LLC 2024 WL 1332635 (E.D.N.Y. March 28, 2024) the court granted the Defendant’s motion to dismiss with prejudice in a putative TCPA class action.
Alleviate argued Plaintiff had failed to allege any facts connecting it to the calls at issue. Indeed the allegations Bank provided made no “direct connection” between the company actually making the calls and Alleviate–and the Court agreed:
Because of the lack of information in the FAC connecting Defendant to the initiator of any of the three calls, the Court finds that Plaintiff has failed to adequately plead a TCPA claim against Defendant and dismisses this cause of action under Rule 12(b)(6).
Booyah.
Further, in light of Bank’s frequent appearances in federal court and his seeming knowledge of TCPA suits the Court was unforgiving on the errors in the complaint. Not only had he failed to allege facts sufficiently connecting Alleviate with the challenged calls he also failed to allege his telephone number was used for residential purposes–a critical requirement for DNC claims:
It is clear from Plaintiff’s litigation history—nearly a decade of bringing TCPA claims in the Eastern District of New York—that he knew or should have known the requirements to adequately plead a violation of both provisions of the TCPA he invokes in this case. Indeed, Plaintiff appears to not have learned from past pleading deficiencies for adequately alleging liability for violations of Section 227(b) and Section 227(c) (5)—even before this very Court. See, e.g., Spark Energy I, 2020 WL 5752185; Spark Energy II, 2020 WL 6873436. The Court is further compelled to deny Plaintiff leave to further amend his pleadings because he has already done so once in this case— the day after Defendant filed its first PMC letter seeking leave to file a motion to dismiss. Plaintiff therefore had the benefit of a preview of Defendant’s arguments for dismissal, at least as to the first cause of action for a violation of Section 227(b)(1). In the case of his DNCR claim under Section 227(c)(5) of the TCPA, he openly admits to his “oversight” in failing to plead adequate facts and does not even attempt to show good cause for this oversight
Double booyah.
TCPA litigants will also file suits against a party without any real firm evidence the Defendant made the call at issue. Its great to see a court dispatch such a case right out of the gate– that’s the way it should be. And having the Court note Bank’s background as a basis to forbid further pleadings is the chef’s kiss here.
Obviously there was some good lawyering involved here, and that good lawyer is Jenniffer Cabrera— Troutman Amin, LLP‘s incredible Florida attorney who holds down our entire East Coast operation for us.
A big congratulations to the Countess, and of course to the good folks at Alleviate Tax who wisely trusted the Firm with this critical matter. They’re a great shop–very compliant and thoughtful in their approach to assisting consumers.
If you’d like to get a better sense of how Troutman Amin, LLP keeps delivering incredible litigation victories for its clients be sure to request a copy of the Firm’s 2024 TCPA Annual Review, presented by Contact Center Compliance! It is totally free!
Chat soon.
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