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Allstate Insurance Co. must defend allegations that it violated the Telephone Consumer Protection Act by contacting consumers on their cell phones without prior consent, despite one plaintiff having accepted an offer of judgment, as the other plaintiff has yet to accept and may still move for class certification, according to a June 10 decision by the U.S. District Court for the Northern District of California (Chen v. Allstate Insurance Co., N.D. Cal., No. 4:13-cv-00685-PJH, 6/10/13).
Richard Chen filed the putative class action against Allstate Insurance Co., with which he had no preexisting relationship, after receiving at least eight calls to his cell phone using an automatic telephone dialing system. The complaint was later amended to add Florencio Pacleb as a plaintiff. In April 2013, Chen accepted Allstate's $15,000 offer of judgment and was dismissed. Pacleb never responded, prompting Allstate to move for dismissal, arguing that the offer mooted Pacleb claims and, alternatively, that he could not state a claim under the statute because, as he conceded, he was not the intended recipient of the calls.
The court rejected both arguments, explaining that, even if the claims are moot, the entire case cannot be dismissed for lack of subject matter jurisdiction per Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1086-87 (9th Cir. 2011), and Pacleb may still move for class certification. Furthermore, it reckoned that the question of standing, “given that the calls appeared to be addressed to someone other than [Pacleb],” raises a factual dispute and is not ripe for dismissal at this stage. Finally, the court granted the motion to dismiss insofar as it alleged knowing and willful violations, as Pacleb conceded to the dismissal of those claims.
Text of the court's decision is at http://www.bloomberglaw.com/public/document/Chen_et_al_v_Allstate_Insurance_Company_Docket_No_413cv00685_ND_C -- at Bloomberg Law's website.
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