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Heaton v. Motor Vehicle Assurance

United States District Court, D. Massachusetts

September 28, 2018

JOHN HEATON and CHRISTOPHER HORIGAN, on behalf of themselves and others similarly situated, Plaintiffs,




         John Heaton (“Heaton”) and Christopher Horigan (“Horigan” and together with Heaton, “Plaintiffs”), have filed suit against Motor Vehicle Assurance (“MVA”), National Auto Protection Corp. (“NAPC”) and Sunpath LTD (“Sunpath” and together with NAP, “Defendants”) to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). More specifically, Plaintiffs allege that Defendants made unsolicited telephone calls to their cellular phones and/or landlines. Plaintiffs also allege a claim against the Defendants under the Massachusetts Consumer Protection Act (“Chapter 93A”). Sunpath and NAPC have each filed motions to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), on the grounds that (1) Horrigan lacks standing to assert a claim under the TCPA, and therefore, this Court lacks subject matter jurisdiction over his claim, and (2) both Defendants fail to state a claim upon which relief can be granted pursuant to Chapter 93A. For the reasons set forth below, the Defendants' motions to dismiss are granted in part, and denied, in part.[1]


         The TCPA

         In 1991, Congress enacted the TCPA to regulate the explosive growth of the telemarketing industry. In so doing, Congress recognized that unrestricted telemarketing can be an intrusive invasion of privacy. 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 prerecorded voice … to any telephone number assigned to a … cellular telephone service.” See 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA provides a private cause of action to persons who receive calls in violation thereof. In 2013, the Federal Communication Commission (“FCC”) required prior express written consent for all autodialed or prerecorded telemarketing calls (“robocalls”) to wireless numbers and residential lines. Specifically:

[A] consumer's written consent to receive telemarketing robocalls must be signed and be sufficient to show that the consumer: (1) received “clear and conspicuous disclosure” of the consequences of providing the requested consent, i.e., that the consumer will receive future calls that deliver prerecorded messages by or on behalf of a specific seller; and (2) having received this information, agrees unambiguously to receive such calls at a telephone number the consumer designates.[] In addition, the written agreement must be obtained “without requiring, directly or indirectly, that the agreement be executed as a condition of purchasing any good or service.[]”

         The Alleged Phone Calls to Heaton

         Sunpath is a company that offers extended warranties on automobiles. To generate new clients, Sunpath relies on telemarketing. However, Sunpath's contact with the potential new customers is limited, and the telemarketing is conducted by third parties. One of Sunpath's strategies for telemarketing involve hiring third parties that make use of an automatic telephone dialing system (“ATDS”) to solicit potential customers through the use of a predictive dialer. Sunpath also has some of its third parties employ the use of pre-recorded messages, which require the consumer to affirmatively respond to an automated message before they can speak with a live person. Sunpath engages this use of this equipment because it allows for thousands of automated calls to be placed at one time, but its telemarketing representatives, who are paid by the hour, only talk to individuals who pick up the telephone.

         NAPC provides marketing services for Sunpath. In making calls, NAPC utilizes leads generated from sources with whom it has contracted and who provide marketing-like banner advertisements and informational landing pages on websites. Interested consumers can provide their vehicle information and other personal information, such as their contact telephone number, on text boxes provided on the website, which only accepts the personal information if the consumer provides written consent. Indeed, consumers are only contacted by NAPC if they provide written consent by checking a box on the website which states that the consumer agrees to specific terms that are set forth on the website. Among the terms to which the consumer agrees are terms that provide that the consumer has consented to, among other things, ATDS calls to their wireless telephones.

         On April 27, 2017, a Colleen Korniotes visited a website entitled “” and consented in writing to receive telephone calls from ATDS to a wireless telephone number associated with Horigan. Specifically, someone referring to themselves as “Colleen Korniotes” visited the “” website, at 10:18 p.m. (22:18) on April 27, 2017, and provided the name and email address for Colleen Korniotes with a cellular telephone number of (508) XXX-4142, which is Horigan's number. The person who visited the site checked the appropriate boxes indicating that s/he consented to receive telephone calls, including ATDS calls. The website permits consumers to supply information, including their telephone number(s), addresse(s) and email addresse(s), but it will not accept this information unless the consumer checks the two boxes on the website by which the consumer gives his or her permission to be, among other things, contacted on their wireless telephones through telephone calls generated by automated telephone dialing systems.

         NAPC placed a pre-recorded telemarketing call to Heaton on July 7, 2017 to cellular telephone number (508) XXX-4142. When the call was answered, there was a lengthy pause and a click followed by silence before a pre-recorded message came on the line. Horigan believes that the call was made using an ATDS. To identify the calling party, Horigan pressed “1.” When he connected with a live individual, Horigan was solicited for an extended warranty purchase for Sunpath services. When Horigan sought to identify the company that was calling him, he was told the company was “” During the conversation, Horigan identified himself as “Christopher Miller” and had and extensive conversation with the caller (and other persons who he was transferred to speak to) regarding his vehicle. Horigan avers that he did not go on the “” on April 27, 2017, and that the computer IP address associated with the computer that went on the site that day is not the IP address of his home computer.

         Allegations of Actual Injury

         Plaintiffs were temporarily deprived of legitimate use of their phones because the phone line was tied up, they were charged for the calls and their privacy was improperly invaded. Moreover, these calls injured Plaintiffs because they “were frustrating, ...

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