United States District Court, D. Massachusetts
SAMUEL KATZ and LYNNE RHODES, individually, and on behalf of all others similarly situated, Plaintiffs,
LIBERTY POWER CORP., LLC and LIBERTY POWER HOLDINGS, LLC, Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO
DISMISS AND MOTION FOR SUMMARY JUDGMENT
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
putative class action, Samuel Katz (“Mr. Katz”)
and Lynne Rhodes (“Ms. Rhodes” and together with
Mr. Katz, “Plaintiffs”) allege that Liberty Power
Corp., LLC and Liberty Power Holdings, LLC (together,
“Liberty Power”) or their agents placed calls in
violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. §§ 227 et
seq. They bring claims on behalf of four
putative classes and claim that Liberty Power violated the
TCPA by placing robocalls to cell phones, making
telemarketing calls that used an artificial or prerecorded
voice, calling numbers that were registered on the national
Do Not Call Registry, and failing to maintain and respect an
internal do-not-call list. [ECF No. 109 (“Second
Amended Complaint” or “SAC”) ¶¶
116–49]. Additionally, Plaintiffs allege that Liberty
Power is engaged in actual and constructive fraudulent
transfers in violation of Florida’s Uniform Fraudulent
Transfer Act (the “UFTA”), Fla. Stat. §
726.105. [SAC ¶¶ 150–67].
before the Court are Liberty Power’s motion to dismiss
the Second Amended Complaint [ECF No. 118] and its motion for
summary judgment [ECF No. 163]. For the reasons explained
herein, the motion to dismiss [ECF No. 118] is
GRANTED in part and DENIED in part, and the
motion for summary judgment [ECF No. 163] is DENIED.
Katz filed this lawsuit on March 16, 2018. [ECF No. 1]. On
June 25, 2018, Liberty Power filed its answer to the initial
complaint together with a third-party complaint against its
vendor, Mezzi Marketing LLC. [ECF No. 28]. Plaintiffs filed
an amended complaint on July 16, 2018, and the operative
Second Amended Complaint on November 14, 2018. [ECF Nos. 34,
109]. On February 27, 2019, the Court granted Liberty
Power’s request to bifurcate discovery and stayed class
discovery pending any summary judgment motion on facts
specific to the named Plaintiffs. [ECF No. 125]. On April 11,
2019, the Court clarified that its bifurcation order did not
require discovery or permit summary judgment motions
associated with Liberty Power’s overall implementation
of its do-not-call policies or issues concerning the
relationship between Liberty Power and its vendors. [ECF No.
Power filed the instant motion to dismiss on January 9, 2019.
[ECF No. 118]. Plaintiffs opposed the motion to dismiss on
February 13, 2019, [ECF No. 124], and Liberty Power filed a
reply on March 15, 2019, [ECF No. 130]. Because Liberty
Power’s motion to dismiss argues that the TCPA is
unconstitutional, on May 9, 2019, the Government intervened
in this lawsuit and filed a brief arguing that the TCPA is
constitutional. [ECF Nos. 141, 143, 144]. On June 21, 2019,
Liberty Power and Plaintiffs responded to the
Government’s brief. [ECF Nos. 166, 167].
Power filed the instant motion for summary judgment on June
21, 2019. [ECF No. 163]. Its primary argument for summary
judgment is that Plaintiffs lack standing to pursue their
claims. On July 12, 2019, Plaintiffs opposed the motion for
summary judgment, and on August 1, 2019, Liberty Power filed
a reply. [ECF Nos. 175, 184]. On September 3, 2019, Liberty
Power filed a notice of supplemental authority. [ECF No.
The TCPA and Plaintiffs’ Claims
passed the TCPA in 1991, prompted by voluminous consumer
complaints about abuses of telephone technology.”
Physician’s Healthsource, Inc. v. Vertex Pharm.
Inc., 247 F.Supp. 3d 138, 147 (D. Mass. 2017) (quotation
marks and citation omitted). In pertinent part, the TCPA
provides that it is 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 any automatic telephone dialing system
[(“ATDS”)] or an artificial or prerecorded voice
. . . to any telephone number assigned to a . . . cellular
telephone service . . . or any service for which the called
party is charged for the call, unless such call is made
solely to collect a debt owed to or guaranteed by the United
to initiate any telephone call to any residential telephone
line using an artificial or prerecorded voice to deliver a
message without the prior express consent of the called
party, unless the call is initiated for emergency purposes,
is made solely pursuant to the collection of a debt owed to
or guaranteed by the United States, or is exempted by rule or
order by the Commission under paragraph (2)(B).
47 U.S.C. § 227(b)(1). The TCPA provides a private right
of action to remedy violations of those provisions and allows
claims for actual damages or $500 in statutory damages per
violation. Id. § 227(b)(3).
pursuant to provisions of the TCPA the Federal Communication
Commission (“FCC”) created a national Do Not Call
Registry and promulgated regulations requiring internal
do-not-call lists. See id. § 227(c); 47 C.F.R.
§ 64.1200. The TCPA contains a second cause of action
for persons who receive “more than one telephone call
within any 12-month period by or on behalf of the same entity
in violation of the” FCC’s Do Not Call Registry
regulations. 47 U.S.C. § 227(c)(5).
bring their claim on behalf of each of the following four
putative nationwide classes:
Robocall Class: All persons in the United
States who received one or more telemarketing calls to their
wireless telephone numbers by or on behalf of Liberty Power,
that were made using an autodialer or an artificial or
prerecorded voice, from March 16, 2014 through the date the
Court certifies the class.
Residential Class: All persons in the United
States who received one or more telemarketing calls to their
residential (wireless or landline) telephone numbers by or on
behalf of Liberty Power, that were made using an artificial
or prerecorded voice, from March 16, 2014 through the date
the Court certifies the class.
National Do Not Call Class (“NDNC
Class”): All persons in the United States
whose residential (wireless or landline) telephone number was
registered with the national Do-Not-Call registry for at
least thirty days prior to receiving at least two
telemarketing calls by or on behalf of Liberty Power to such
number within any 12-month period at any time from March 16,
2014 through the date the Court certifies the class.
Internal Do Not Call Class (“IDNC
Class”): All persons in the United States who
received at least two telemarketing calls to their
residential (wireless or landline) telephone number by or on
behalf of Liberty Power within any 12-month period at any
time from March 16, 2014 through the date the Court certifies
[SAC ¶ 106]. Ms. Rhodes is the sole named representative
for the Robocall Class, and both Ms. Rhodes and Mr. Katz
purport to represent the Residential, NDNC, and IDNC Classes.
Plaintiffs claim that Liberty Power or its agents: (1) called
Robocall Class members in violation of the TCPA’s
prohibition on using an ATDS or with an artificial or
prerecorded voice in violation of 47 U.S.C. §
227(b)(1)(A)(iii) (“Count I”); (2) called
Residential Class members using an artificial or prerecorded
voice in violation of 47 U.S.C. § 227(b)(1)(B)
(“Count II”); (3) called NDNC Class
members’ registered Do Not Call Registry phone numbers
with impermissible frequency in violation of 47 C.F.R. §
64.1200(c)(2) (“Count III”); and (4) placed
telemarketing calls to IDNC Class members without proper
internal do not call list procedures in violation of 47
C.F.R. § 64.1200(d) (“Count IV”). [SAC
¶¶ 116–49]. The Second Amended Complaint also
asserts claims for actual fraudulent transfers (“Count
V”) and constructive fraudulent transfers (“Count
VI”) in violation of the UFTA, Fla. Stat. §
726.105. [SAC ¶¶ 150–67].
summary accepts the well-pled, class-wide allegations in the
Second Amended Complaint as true. Because facts related to
the named Plaintiffs and the allegedly impermissible calls
they received have been the subject of discovery, those facts
are drawn from Liberty Power’s statement of material
facts, [ECF No. 176-22 at 11–17 (“DSOFR”),
18–42 (“DSOFK”)],  and Plaintiffs’
statement of material facts, [ECF No. 187-10
(“PSOF”)]. The Court draws all justifiable
inferences in favor of Plaintiffs as the non-movants. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Power Corp., LLC and Liberty Power Holdings, LLC are Delaware
entities with their principal place of business in Florida.
[SAC ¶¶ 5–6]. Among other businesses, Liberty
Power is a retail electric provider to Massachusetts
residents. [SAC ¶ 8]. It contracts with customers to
fulfill their electric needs, makes purchases from utilities
that provide the electricity that it sells, and maintains
reliable electric service for its customers. [SAC ¶ 9].
Liberty Power uses aggressive, outbound telemarketing
campaigns, including pre-recorded or artificial voices to
solicit potential residential customers. [SAC ¶¶
23–24]. Potential customers are called based on their
presence on “lead lists” that Liberty Power
provides to its agents. [SAC ¶ 34]. The calls ask
customers “to press 1 to save on their electric bills,
” and potential customers who press 1 are then
connected to an agent. See [SAC ¶ 25]. Although
Liberty Power exercises significant control over the manner
of its agents’ telemarketing campaigns, the Second
Amended Complaint alleges that its agents fail to obtain
consent from consumers before placing unwanted calls that use
prerecorded or artificial voices and make repeated calls to
potential consumers, like Plaintiffs, whose telephone numbers
are listed on the National Do Not Call Registry. [PSOF
¶¶ 1, 4, 22; SAC ¶¶ 28, 33, 45–52].
times relevant to this lawsuit, Mr. Katz was a resident of
Bellingham, Massachusetts. [SAC ¶ 2]. Mr. Katz, a
frequent litigant in TCPA cases, closely tracks the
telemarketing calls that he receives. See [DSOFK
¶¶ 27, 31]. He has sent at least twenty-five TCPA
claim demand letters and filed at least nine TCPA lawsuits.
[DSOFK ¶¶ 30–31]. When Liberty Power’s
agents placed the calls at issue here to Mr. Katz, he had
four “residential” telephone numbers: a Google
Voice number, his cell phone number, a landline for
emergencies, and a second landline for business. [DSOFK
¶ 27; PSOF ¶ 44].
September and October of 2016, Mr. Katz received
approximately thirteen artificial or prerecorded voice calls
from Liberty Power’s agents on the residential landline
that he maintained for emergencies. [PSOF ¶ 20;
see SAC ¶ 57]. Mr. Katz’s landline phone
was muted, but the landline telephone forwarded incoming
calls to his Google Voice number, which then forwarded them
to his cell phone. [PSOF ¶ 21]. Although the landline
phone at Mr. Katz’s home did not ring, Mr. Katz’s
cell phone did. [PSOF ¶¶ 23, 27]. On at least one
occasion, one of Liberty Power’s agents, Mezzi
Marketing, used a “spoofed” number to call Mr
Katz, which Mr. Katz claims helped Liberty Power conceal the
improper nature of the calls being made on its behalf. [PSOF
¶ 32]. All of Mr. Katz’s phone numbers were
registered on the Do Not Call Registry. [PSOF ¶ 22].
and 2018, Liberty Power’s agents placed several calls
to Ms. Rhodes’ cell phone, which was registered on the
Do Not Call Registry, and at least one of those calls used a
prerecorded voice. [PSOF ¶¶ 1–2]. In late
2017, Ms. Rhodes also answered numerous calls on the landline
at her father’s residence, which she had helped her
father, Scoba Rhodes (“Mr. Rhodes”), register on
the Do Not Call Registry. [PSOF ¶¶ 4, 15]. Ms.
Rhodes answered several of those calls after having moved
back in with Mr. Rhodes, who was suffering from dementia.
[PSOF ¶ 5]. Mr. Rhodes also answered calls from Liberty
Power or its agents himself. See [PSOF ¶ 14].
Given Mr. Rhodes’ health problems, Ms. Rhodes was
concerned that the callers were trying to take advantage of
him. [PSOF ¶¶ 7, 10]. The calls were relentless;
for example, in November 2017 Liberty Power’s agents
called Mr. Rhodes’ landline four to six times per week,
and Ms. Rhodes answered most of those calls. [PSOF ¶ 7].
Ms. Rhodes was not officially listed on ...