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eFinancial Texts to Cell Phones and Do-Not-Call Numbers TCPA Class Action

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Some consumers have taken to doubling up protection from unwanted telemarketing calls, by placing their (already off-limits) cell phone numbers on the National Do Not Call Registry. And some companies continue to ignore the Telephone Consumer Protection Act (TCPA). In this case, the complaint alleges that eFinancial, LLC sent text messages in violation of the law.

The TCPA already forbids telemarketers from placing calls or sending text to consumer cell phones using an automatic dialing system or an artificial or prerecorded voice, unless they get the consumers’ prior express written consent to receive such calls. 

Because of this law, no telemarketers should have been targeting plaintiff David Borden’s phone. Just to make sure, however, he also registered it with the National Do Not Call Registry.

However, between January 2 and January 23, 2019, Borden received a number of text messages while he was at work. Here’s a sampling of how they began: 

  • January 2: “Progressive Advantage through eFinancial: It only takes a few minutes to buy life insurance.”
  • January 9: “Progressive Advantage through eFinancial: Still interested in Life insurance?”
  • January 22 and 23: “Progressive Advantage through eFinancial: Life is busy but we promise it can be quicker than you think.”
  • Undated: “Progressive Advantage through eFinancial: It’s been awhile, call today for an updated quote…”

The complaint says the short code for the messages is listed in the US Short Code Directory as being “owned and controlled by Defendant eFinancial.”

The complaint alleges that an automatic dialing system was used to send the text messages.

The class for this action is all persons and entities whose telephone numbers were sent eFinancial’s text messages from September 6, 2015 on, where

  • eFinancial, or someone acting on its behalf, sent the messages to advertise the commercial availability or quality of any property, goods, or service, or to encourage the purchase or rental of property, goods, or services, to a cell phone number, using an automatic dialing system, without getting those persons’ or entities prior express written consent; or
  • eFinancial, or someone acting on its behalf, sent more than one message to encourage the purchase or rental of property, goods, or services, within a twelve-month period, to a cell phone number, without first getting those persons’ or entities’ Do Not Call permission, where that cell phone number had been registered with the National Do Not Call Registry for at least thirty days.
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