AT IT AGAIN: Repeat TCPA Litigator Joseph Friel Sues ETN America and CEO Shlomi Cohen Individually in TCPA Class Action
Another day, another TCPA class action naming a company’s CEO individually along with the company filed by a repeat TCPA litigator.
Today’s case involves a suit against ETN America–operator of contractors99.com–along with CEO Shlomi Cohen.
The suit is brought in federal court out in Pennsylvania– although it looks like Cohen lives in California.
Regardless the suit claims ETN sent messages posing as “Install America” to promote window repairs. Apparently Friel claims he received both text messages and prerecorded calls without his consent.
He sue not only ETN but also CEO Cohen claiming:
Mr. Cohen personally participated in the actions complained of by: (a) selecting the script that was going to be used on the calling; (b) personally approving in the call center operations and (d) personally authorizing any other telemarketing conduct of ETN America.
Hmmm. I wonder what “(c)” was.
Sloppy sloppy.
Regardless as Cohen is alleged to be the “primary operator” of the home improvements and windows company Friel is looking to hold him personally liable for the conduct at issue.
The complaint seeks to certify the following classes:
Robocall Class: All persons in the United States who, (1) within four years prior to the commencement of this litigation until the class is certified (2) received one or more calls on their cellular telephone or any other protected telephone service (3) from or on behalf of Defendants, (4) sent using the same, or substantially similar, pre-recorded message used to contact the Plaintiff.
National Do Not Call Registry Class: All persons within the United States: (1) whose residential telephone numbers were on the National Do Not Call Registry for at least 31 days; (2) but who received more than one telephone solicitation call from Defendants or a third party acting on Defendants’ behalf; (3) within a 12- month period; (4) within the four years prior to the filing of the Complaint.
These class definitions are plainly overly broad since they do not exclude individuals that consented to receive calls, but we will see what the court has to say about that.
Plaintiff’s lawyer is the Wolf– Anthony Paronich. So we will see where this goes.
Defendants have not made an appearance and I don’t know who their counsel will be.
Will keep an eye on this one to see if any of these allegations are true.
Full complaint here: Complaint Friel
A few take aways:
PERSONAL LIABILITY is a big risk in TCPAWorld folks. The corporate form will not protect you from being sued!
Seeing an uptick in TCPA suits in home improvement–be careful! If you’re in this vertical be sure to head out LCOC III to stay up to date on all tips and tricks to stay out of trouble!
I’m going to guess this case arose out of third-party lead generation. Cannot emphasize enough how important it is to work with quality lead gen partners folks. With the recent explosion in marketing robocalls it is clear the bad guys are on the loose again– don’t feed the wolf!
European Commission Proposes Expansion to Records of Processing Derogation
On May 21, 2025, the European Commission published a proposal for a new regulation simplifying certain regulatory requirements for “small mid-cap enterprises” (the “Simplification Regulation Proposal”). Small mid-caps will be companies with fewer than 750 employees and either up to €150 million in turnover or up to €129 million in balance sheet.
As part of its simplification efforts, the European Commission proposes amending the EU General Data Protection Regulation (“GDPR”) by extending the derogation from the obligation to maintain records of processing activities (Article 30(5) of the GDPR) to small mid-caps. The current version of the derogation is only applicable to companies employing fewer than 250 persons.
The amended derogation would apply unless an organization carries out processing activities that are likely to result in a high risk to the rights and freedoms of individuals, expanding the current formulation. In this context, the European Commission proposes clarifying that the processing of special categories of personal data which is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the individual in the field of employment and social security and social protection law will not impact the derogation under Article 30(5) of the GDPR.
In addition, the Simplification Regulation Proposal also proposes amending the GDPR to require that the needs of small mid-caps be specifically considered when drafting GDPR codes of conduct, certification mechanisms, seals, and marks.
The Simplification Regulation Proposal will now be subject to the EU’s legislative procedure and may be further amended by the European Parliament or the Council.
Read the Simplification Regulation Proposal.
Exploring California’s Proposed AI Bill
California lawmakers have proposed new legislation to reshape the growing use of artificial intelligence (AI) in the workplace. While this bill aims to protect workers, employers have expressed concerns about how it might affect business efficiency and innovation.
What Does California’s Senate Bill 7 (SB 7) Propose?
SB 7, also known as the “No Robo Bosses Act,” introduces several key requirements and provisions restricting how employers use automated decision systems (ADS) powered by AI. These systems are used in making employment-related decisions, including hiring, promotions, evaluations, and terminations. The pending bill seeks to ensure that employers use these systems responsibly and that AI only assists in decision-making rather than replacing human judgment entirely.
The bill is significant for its privacy, transparency, and workplace safety implications, areas that are fundamental as technology becomes more integrated into our daily work lives.
Privacy and Transparency Protections
SB 7 includes measures to safeguard worker privacy and ensure that personal data is not misused or mishandled. The bill prohibits the use of ADS to infer or collect sensitive personal information, such as immigration status, religious or political beliefs, health data, sexual or gender orientation, or other statuses protected by law. These limitations could significantly limit an employer’s ability to use ADS to streamline human resources administration, even if the ADS only assists but does not replace human decision making. Notably, the California Consumer Privacy Act, which treats applicants and employees of covered businesses as consumers, permits the collection of such information.
Additionally, if the bill is enacted, employers and vendors will have to provide written notice to workers if an ADS is used to make employment-related decisions that affect them. The notice must provide a clear explanation of the data being collected and its intended use. Affected workers also must receive a notice after an employment decision is made with ADS. This focus on transparency aims to ensure that workers are aware of how their data is being used.
Workplace Safety
Beyond privacy, SB 7 also highlights workplace safety by prohibiting the use of ADS that could violate labor laws or occupational health and safety standards. Employers would need to make certain that ADS follow existing safety regulations, and that this technology does not compromise workplace health and safety. Additionally, ADS restrictions imposed by this pending bill could affect employers’ ability to proactively address or monitor potential safety risks with the use of AI.
Oversight & Enforcement
SB 7 prohibits employers from relying primarily on an ADS for significant employment-related decisions, such as hiring and discipline, and requires human involvement in the process. The bill grants workers the right to access and correct their data used by ADS, and they can appeal ADS employment-related decisions. A human reviewer must also evaluate the appeal. Employers cannot discriminate or retaliate against a worker for exercising their rights under this law.
The Labor Commissioner would be responsible for enforcing the bill, and workers may bring civil actions for alleged violations. Employers may face civil penalties for non-compliance.
What’s Next?
While SB 7 attempts to keep pace with the evolution of AI in the workplace, there will likely be ongoing debate about these proposed standards and which provisions will ultimately become law. Jackson Lewis will continue to monitor the status of SB 7.
Washington’s Digital Ad Tax Enacted: Is Litigation Now Inevitable?
On May 20, 2025, Washington Governor Bob Ferguson signed into law Senate Bill (SB) 5814, a sweeping tax bill that expands Washington’s retail sales and use tax to digital advertising services and a range of high-tech and IT services. The new law takes effect for sales occurring on and after October 1, 2025.
As we noted previously, this legislation marks a significant shift in Washington’s tax policy, extending sales tax to categories of traditionally exempt business-to-business services. With enactment, legal challenges – particularly under the federal Internet Tax Freedom Act (ITFA) – are ripe and appear inevitable.
WHAT THE LAW DOES
SB 5814 amends RCW 82.04.050 by redefining “sale at retail” to include “advertising services,” broadly covering both digital and nondigital forms of ad creation, planning, and execution. The law specifically includes:
Online referrals
Search engine marketing
Lead generation optimization
Web campaign planning
Digital ad placement
Website traffic analysis
However, the law expressly excludes services rendered in connection with:
Newspapers (RCW 82.04.214)
Printing or publishing (RCW 82.04.280)
Radio and television broadcasting
Out-of-home advertising (g., billboards, transit signage, event displays)
With these carve-outs, it is difficult to see how anything other than internet advertising remains subject to tax. The structure of the new tax facially discriminates against e-commerce and is barred by ITFA.
ITFA AND THE CERTAINTY OF A LEGAL CHALLENGE
ITFA prohibits states from imposing taxes that discriminate against digital services when comparable offline equivalents are exempt. While SB 5814 purports to cover both digital and nondigital advertising, the exclusions for nondigital forms of advertising cause it to target the digital side of the industry. For example, a digital banner ad will be taxed, whereas a banner towed by an airplane promoting the same product will not.
This distinction mirrors the structure of Maryland’s Digital Advertising Gross Revenues Tax, which has been tied up in litigation since its enactment in 2021. A Maryland trial court found that law facially violated ITFA and federal preemption principles. That litigation continues, and Washington now finds itself on a similar path.
HIGH-TECH AND IT SERVICES ARE NOW TAXABLE
In addition to digital advertising, SB 5814 extends the retail sales tax to high-tech services, including:
Custom website development
IT technical support and network operations
Data processing and data entry
In-person or live-virtual technical training
Like advertising, these intermediate services typically are purchased by businesses in support of operations rather than for end consumption. Taxing their sale introduces tax pyramiding and adds costs that will ultimately be passed on to consumers. For Washington’s tech-driven economy, this change will inflate prices and reduce competitiveness.
Local advertisers and businesses that rely on digital marketing and high-tech services will see these costs rise and lead to higher prices for consumers.
OUTLOOK
While SB 5814 is now law, its enforceability remains far from certain. Taxing digital advertising services while expressly excluding offline media places the new law on a collision course with ITFA. A legal challenge is all but guaranteed.
At the same time, the law’s fiscal impact is speculative. Revenue projections assume compliance across a complex landscape of service transactions, but practical realities, including sourcing ambiguities, administrative burdens, and behavioral changes, may undermine the base.
Washington, like Maryland, will find that taxing digital advertising is easier to legislate than to defend. The real test will come not in Olympia, but in the courts.
OCR Reaches Settlement with Small Radiology Provider Over HIPAA Violations Stemming from Breach
On May 15, 2025, the U.S. Department of Health and Human Services’ Office for Civil Rights (“OCR”) announced a settlement with Vision Upright MRI, a small California-based radiology provider, over alleged violations of the HIPAA Security and Breach Notification Rules. The enforcement action stems from a breach involving unauthorized access to a medical imaging server that exposed the protected health information (“PHI”) of over 21,000 individuals.
OCR initiated its investigation after receiving notification that Vision Upright MRI had experienced a breach involving its Picture Archiving and Communication System (“PACS”) server. The server, which stored and managed radiology images, had been accessed by an unauthorized third party.
OCR’s investigation revealed several key compliance failures:
Vision Upright MRI had had not conducted a HIPAA risk analysis, as required by the Security Rule.
Vision Upright MRI also failed to provide timely breach notifications to affected individuals, HHS, and the media, violating the Breach Notification Rule.
To resolve the investigation, Vision Upright MRI agreed to:
Pay a $5,000 monetary settlement to OCR.
Implement a corrective action plan that includes two years of OCR monitoring.
Take remedial steps to improve its HIPAA compliance posture.
Under the corrective action plan, Vision Upright MRI must:
Provide the required breach notifications to affected individuals, HHS, and the media.
Submit a comprehensive risk analysis covering all systems and locations containing ePHI.
Develop and implement a risk management plan to mitigate identified security vulnerabilities.
Create and maintain updated written HIPAA policies and procedures.
Provide HIPAA training to all workforce members with access to ePHI.
OCR Acting Director Anthony Archeval emphasized that HIPAA compliance obligations extend to entities of all sizes, and noted that small providers must conduct “accurate and thorough risk analyses to identify potential risks and vulnerabilities to protected health information and secure them.”
This latest settlement reinforces OCR’s continued focus on cybersecurity risks in healthcare and the need for all regulated entities, regardless of size, to maintain robust privacy and security programs.
Litigation Trend Alert: Breach of Contract and Warranty Claims Based on Privacy Policies
A recent series of articles by the International Association of Privacy Professionals discusses a trend in privacy litigation focused on breach of contract and breach of warranty claims.
Practical Takeaways
Courts are increasingly looking at website privacy policies, terms of use, privacy notices, and other statements from organizations and assessing breach of contract and warranty claims when individuals allege businesses failed to uphold their stated (or unstated) data protection promises (or obligations).
To avoid such claims, businesses should review their data privacy and security policies and public statements to ensure they accurately reflect their data protection practices, invest in robust security measures, and conduct regular audits to maintain compliance.
Privacy policies are no longer just formalities; they can become binding commitments. Courts are scrutinizing these communications to determine whether businesses are upholding their promises regarding data protection. Any discrepancies between stated policies and actual practices can lead to breach of contract claims. In some cases, similar obligations can be implied through behavior or other circumstances and create a contract.
There are several ways these types of claims arise. The following outlines the concepts that plaintiffs are asserting:
Breach of Express Contract: These claims arise when a plaintiff alleges a business failed to adhere to the specific terms outlined in their privacy policies. For example, if a company promises to “never” share user data with third parties but does so.
Breach of Implied Contract: Even in the absence of explicit terms, businesses can face claims based on implied contracts. This occurs when there is an expectation of privacy and/or security based on the nature of the relationship between the business and its customers.
Breach of Express Warranty: Companies that make specific assurances about the security and confidentiality of user data can be held liable if they fail to meet these assurances.
Breach of Implied Warranty: These claims are based on the expectation that a company’s data protection measures will meet certain standards of quality and reliability.
How to avoid being a target:
Ensure Accuracy in Privacy Policies, Notices, Terms: Even if a business takes the steps described below and others to strengthen its data privacy and security safeguards, those efforts still may be insufficient to support strong statements concerning such safeguards made in policies, notices, and terms. Accordingly, businesses should carefully review and scrutinize their privacy policies, notices, terms, and conditions for collecting, processing, and safeguarding personal information. This effort should involve the drafters of those communications working with IT, legal, marketing, and other departments to ensure the communications are clear, accurate, and reflective of their actual data protection practices.
Assess Privacy and Security Expectations and Obligations. As noted above, breach of contract claims may not always arise from express contract terms. Businesses should be aware of circumstances that might suggest an agreement with customers concerning their personal information and then work to address the contours of that promise.
Strengthen Data Privacy and Security Protections. A business may be comfortable with its public privacy policies and notices, feel that it has satisfied implied obligations, but still face breach of contract or warranty claims. In that case, having a mature and documented data privacy and security program can go a long way toward strengthening the business’s defensible position. Such a program includes adopting comprehensive privacy and security practices and regularly updating them to address new threats. At a minimum, the program should comply with applicable regulatory obligations, as well as industry guidelines. The business should regularly review the program, its practices, changes in service, etc., as well as publicly stated policies and notices, as well as customer agreements, to ensure that data protection measures align with stated policies.
DHS: E-Verify System Error May Require Employer Correction
Employers that received a Final Nonconfirmation (FNC) result from E-Verify for certain cases between April 9 and May 5, 2025, may have to take corrective action due to a recently reported system error.
Background on the E-Verify System Error
The U.S. Department of Homeland Security (DHS) announced on May 19, 2025, that E-Verify experienced a technical issue with Social Security Administration (SSA) mismatch cases, which were referred between April 9 and May 5, 2025, to resolve a tentative nonconfirmation (TNC). This included cases with dual SSA and DHS mismatches if the employee visited an SSA field office to resolve the issue but did not contact DHS.
As a result, some cases may have incorrectly received a FNC result even after the employee took appropriate steps to resolve their TNCs at an SSA office. This error may falsely indicate that an employee is not authorized to work even though they followed the resolution process as required.
Employer Action May Be Required
According to DHS, if an employer received an FNC for an E-Verify case referred between April 9 and May 5, 2025, where the mismatch involved the SSA, or both the SSA and DHS:
For affected cases, do not take adverse action and do not terminate the employee based on the FNC result.
Create a new E-Verify case for the affected employee.
If a new E-Verify case was created and it received an Employment Authorized result, no further action is needed.
Additionally, DHS notified employers that the “E-Verify Needs More Time” status message may remain visible longer than usual for these cases.
California Announces Investigative Sweep of Location Data Industry
On March 10, 2025, California Attorney General Rob Bonta announced an investigative sweep targeting the location data industry, emphasizing compliance with the California Consumer Privacy Act (CCPA). This announcement follows the California legislature proposing a bill that, if passed, would impose restrictions on the collection and use of geolocation data.
Of course, concerns about geolocation tracking are not limited to California.
In California, the Attorney General’s investigation involved sending letters to advertising networks, mobile app providers, and data brokers that appear to the Attorney General to be in violation of the CCPA. These letters notify recipients of potential violations and request additional information regarding their business practices. The focus is on how businesses offer and effectuate consumers’ rights to stop the sale and sharing of personal information and to limit the use of sensitive personal information, including geolocation data.
To avoid enforcement actions, businesses in the location data industry must ensure compliance with the CCPA.
Understand Consumer Rights: The CCPA grants California consumers several rights, including the right to know what personal information is being collected, the right to opt out of the sale or sharing of their personal information, and the right to delete their personal information. Because precise geolocation data is “sensitive personal information” under the CCPA, consumer rights also include the right to limit the use or disclosure of such information. Businesses must clearly communicate these rights to consumers (which includes employees).
Implement Opt-Out/Limitation Mechanisms: As noted, businesses must provide consumers with the ability to opt out of the sale and sharing of their personal information, and to limit the use or disclosure of sensitive personal information. This includes implementing clear and accessible opt-out/limitation request mechanisms on websites and mobile apps. Once a consumer opts out, businesses cannot sell or share their personal information unless they receive authorization to do so again.
Transparency and Accountability: Businesses must be transparent about their data collection and disclosure practices. This includes providing detailed privacy policies that explain what data is collected, how it is used, and the categories of third parties to whom it is disclosed. Additionally, businesses should be prepared to respond to inquiries from the Attorney General’s office and provide documentation of their compliance efforts.
Fourth Circuit Ruling Provides New Guidance as to Furnishers’ Duty to Investigate Legal Disputes Under the FCRA
The Fair Credit Reporting Act (FCRA) has been a notoriously active area for litigation, especially class-action litigation, in recent years. One issue that continues to be litigated in FCRA cases involving data furnisher liability is the scope of a review that the furnisher must undertake when a consumer dispute is lodged. In particular, courts have been asked in recent years to decide whether consumer disputes involving legal issues, as opposed to disputes over factual inaccuracies appearing in a consumer’s tradeline, fall within the scope of a review required under the FCRA.
Recent decisions from multiple appellate circuits have taken varying approaches to resolve this issue. Adding to the developing authority on this issue, a recent ruling by the Fourth Circuit determined that furnishers must investigate disputes that are based on information that is objectively and readily verifiable, regardless of whether the dispute involves legal or factual issues.
Background of the Case
The case, Roberts v. Carter-Young, Inc., 131 F.4th 241 (4th Cir. 2025), involved a consumer, Shelby Roberts, who disputed a tradeline on her credit report related to the termination of a prior residential lease. Prior to the tradeline being reported, Roberts’ landlord determined that she was unwilling to pay this debt, and it referred the debt to a collection agency, Carter-Young. Carter-Young later reported the debt on Roberts’ tradeline. Roberts disputed this tradeline with the three major credit reporting agencies (CRAs). When notified of this dispute, Carter-Young limited its investigation to confirming the debt with the landlord.
Believing this tradeline review was insufficient, Roberts brought suit under the FCRA. The District Court dismissed Roberts’ claim, finding that her dispute centered upon legal disputes as opposed to factual inaccuracies, and it was therefore not covered by the FCRA’s investigation requirements. On appeal, however, the Fourth Circuit vacated the District Court’s dismissal and remanded the case for further proceedings.
A New Standard in the Fourth Circuit
The legal holding the Fourth Circuit set forth as to the scope of a data furnisher’s review when a tradeline dispute is lodged is notable. Resolving the legal vs. factual issue for the first time in the Fourth Circuit, the court ruled that furnishers must investigate disputes that are based on information that is objectively and readily verifiable, regardless of whether the dispute involves legal or factual issues. This standard mirrored the standard adopted by the Second Circuit in Sessa v. Trans Union, LLC, 74 F.4th 38 (2d Cir. 2023) and the Eleventh Circuit in Holden v. Holiday Inn Club Vacations, Inc., 98 F.4th 1359 (11th Cir. 2024).
However, the Fourth Circuit did not completely reject the possibility that some legal disputes exceed the purview of the FCRA, recognizing the limitations of a furnisher’s investigation. But under this ruling, a furnisher is expected to make reasonable efforts to verify disputed information — even in a legal dispute — so long as the information to be reviewed is objectively and readily verifiable. As to Roberts’ claims specifically, the Fourth Circuit viewed her underlying dispute about whether the debt was owed as something that needed to be determined at the District Court level under the clear and readily verifiable standard.
Implications for Furnishers
For furnishers subject to a lawsuit in the Fourth Circuit’s geographical area, this ruling seems to impose a greater responsibility to conduct thorough investigations of tradeline disputes where the disputed information is clear and verifiable. This responsibility likely adds a new layer of review for furnishers that had been accustomed to conducting a reinvestigation of facts readily available in their records, as certain legal disputes will now also need to be resolved.
Of course, the adoption of legal verbiage such as “objectively and readily verifiable” isn’t likely to end litigation on this issue. At least in the Fourth Circuit (and in the Second and Eleventh Circuits), litigation will likely now center upon whether specific information is actually objectively and readily verifiable and therefore subject to a furnisher liability claim — or whether it falls outside the scope of the FCRA because it is not objectively and readily verifiable. In some ways, this standard is now even more amorphous than before, where it was easier to identify whether a dispute was over a specific fact or over a legal determination. It will bear watching whether other appellate circuits adopt similar or differing standards in the coming months and whether this issue surfaces before the Supreme Court at some point.
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United States: SEC’s Division of Trading and Markets Issues Crypto Asset-Related FAQs (And Withdraws Previous Guidance)
On 15 May 2025, the US Securities and Exchange Commission’s Division of Trading and Markets (Division) released Frequently Asked Questions (FAQs) clarifying how certain broker-dealer and transfer agency rules relate to crypto asset activities. On the same day, the Division and FINRA’s Office of General Counsel withdrew their 8 July 2019 Joint Statement on Broker-Dealer Custody of Digital Asset Securities.
In the context of spot crypto exchange-traded products (ETPs), the FAQs address the Division’s views about broker-dealer custody rules in the context of in-kind creations and redemptions, noting that the possession and control requirements in Rule 15c3-3 under the Securities Exchange Act of 1934 are not triggered if non-security crypto assets are held for customers, but broker-dealers taking proprietary positions in the assets underlying an ETP must account for them as part of their net capital calculations. The Division also stated it would “not object” if broker-dealers were to treat a proprietary position in bitcoin or ether as being readily marketable for purposes of determining whether the 20% haircut applicable to commodities applies. The FAQs also clarified that:
A broker-dealer can establish control of a crypto asset that is a security under Rule 15c3-3(c), even if it isn’t in certificated form, when held at an otherwise qualifying control location; and
Crypto assets that are investment contracts that aren’t the subject of a registration statement filed under the Securities Act of 1933 aren’t treated as securities under the Securities Investor Protection Act of 1970 (and aren’t protected by Securities Investor Protection Corporation).
However, not all answers are “yes” or “no.” For example, whether a transfer agent for a crypto asset security is required to register as a transfer agent with the SEC depends on the type of security and the services, functions or activities provided with respect to it.
Financial Services and Technology: Florida Changes Law to Make Clear that Collection-Related Emails Are Not Included in the Prohibition on After-Hours Communications
On May 16, Governor Ron DeSantis signed bill CS/CS/SB 232 into law. The bill includes modifications to the Florida Consumer Collection Practices Act (FCCPA) to make clear that the prohibition on communications between “9 p.m. and 8 a.m. without prior consent of the debtor” does not include emails. The financial services plaintiffs’ bar has so far had a field day suing banks, consumer finance companies, and debt collectors for allegedly violating the FCCPA by sending routine loan and account-related emails after 9 p.m. These changes will be welcomed by financial service providers. The Section 559.72(17) changes are set forth below:
HANDELED: Dobronski Destroys 1-800-Law-Firm’s Numerous Efforts to End His Case And Its Kind of Absurd Really
So I am no fan of Mark Dobronski, but I am a fan of a good story.
Here’s one.
In Dobronski v. 1-800-Law-Firm, 2025 WL 1386024 (E.D. Mich April 17, 2025) the Court denied a series of motions filed by the Defense seeking to dismiss a TCPA suit filed by Dobronski.
The defendant went to remarkable lengths to attack the case, and while I generally respect the hustle, the arguments here were just not strong.
Starting with the worst argument I have seen in a while, the Defendant accused Dobronski of “deliberate misconduct” for waiting over a year to file his lawsuit, “knowing that industry practice limits third-party vendors’ retention of SMS (Short Message Service) data to one year” and “effectively ensuring that [LAWFIRM] would be unable to access records to defend itself.”
What the hell?
I have not looked at the docket to confirm that argument was actually made but if it was then it is the Defendant who has engaged in “deliberate misconduct.”
Who in the world deletes their records after only one year?
I mean, call recordings sure– those things take up a lot of space– but just deleting all of your records every year sounds like a really bad idea. (Especially since the FTC requires telemarketers to keep records for five years and the FCC requires DNC lists to be maintained basically forever now.)
Unsurprisingly the Court rejected that argument but that was just the start. The Court also rejected the following arguments:
Defendant claims Dobronski filled out a lead form, but since Defendant produced no evidence of the form–and as Dobronski denied filling it out– this argument was rejected;
Defendant argued Dobronski’s failure to “opt out” of their messages somehow meant it had consent to text him– but that’s not how it works. TCPA consent must be obtained before messages are sent;
Defendant argued it had an established business relationship but there was no evidence presented to that effect and Dobronski denied it regardless (the guy, obviously, doesn’t need lawyers);
Defendant argued it is not a telemarketer so the DNC rules do not apply to it but since the messages it sent were, you know, marketing the Court rejected this argument;
Defendant argued the DNC does not apply to calls made for “political, charitable, debt collection, informational, and survey purposes” and that’s true– but Defendant didn’t call for those reasons so this point was utterly frivolous;
Defendant argued Dobronski provided no evidence his number was on the DNC list– but since Dobronski actually did provide a sworn statement to that effect (which would be something called evidence) the Court rejected this argument as well;
Defendant claims Dobronski engaged in an abuse of process by serving discovery demands seeking other businesses to sue– but merely seeking out the names of companies involved in a TCPA violation is plainly within the scope of discovery;
Defendant sought to stay proceedings in the case but the Court found there was no reason to do so;
Defendant also filed a Rule 11 motion but apparently failed to demonstrate by certification that it was served 21 days before it was filed as the rule requires– insane;
Defendant argued “publicly available records” demonstrate Dobronski files meritless cases but Defendant did not produce those records or identify any meritless cases so… yeah;
Defendant also (ironically at this point) claimed Dobronski should be sanctioned because his positions were “unsupported by evidence or legal precedent” although it looks like Defendant should remove the board from its own eye, and all that;
Last Defendant suggested Dobronski had needlessly “multiple the proceedings” with his behavior, but give that it was Defendant who made 13 frivolous or borderline frivolous arguments here the Court rather immediately rejected the motion for sanctions on that basis.
So yeah.
Just absurd how bad some of these arguments are, and while I do respect grit and hustle in the practice of law I do not respect wasting a court’s time. And that’s what appears to have happened here.