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Fiorella Insurance Agency Telemarketing Texts TCPA Class Action

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The complaint for this class action alleges that Fiorella Insurance Agency, Inc. violated the Telephone Consumer Protection Act (TCPA) when it sent text messages to consumer cell phones. 

Congress passed the TCPA in 1991 to protect consumers from the nuisance of telemarketing. Advances in telephone technology, such as automatic dialing systems and prerecorded voices, were allowing telemarketers to call thousands of consumers per day with very little trouble to themselves but a great deal to the consumers they called. 

In this case, one of the two plaintiffs, Catalina Atehortua, received a telemarketing text message from Fiorella on her cell phone sometime around October 17, 2018. The text message began, “Hi Catalina, Do you know if you may be eligible for health insurance plans as low as $0/month?”

Atehortua’s cell phone has been on the National Do Not Call Registry since September 2009.

The other plaintiff, Randal Murallo, began receiving telemarketing text messages from Fiorella on his cell phone around September 27, 2018. The complaint reproduces fourteen of them. The first series began, “Hi Tynard, There is no better time than now to get a health insurance policy.” Another began, “Hi Tynard, Looking for health insurance? No better time than now to get a plan.” A third started off with, “Hi Tynard, Hope you are enjoying your weekend. Agents are standing by to enroll you in health insurance.”

The texts were sent out using an automatic dialing system because of their generic and impersonal nature, the complaint alleges. The complaint also claims that neither of the plaintiffs ever gave their prior express written consent to receive such calls. 

The complaint defines two classes for this action:

  • The No Consent Class is all persons who, from February 19, 2015 on, were sent a text message by or on behalf of Fiorella, using and automatic telephone dialing system, for the purpose of soliciting a purchase of goods or services, and from whom Fiorella either did not obtain prior express written consent or claims to have received it in the same manner it supposedly obtained it from the plaintiffs in this case.
  • The Do Not Call Registry Class is all persons in the US who, from February 19, 2015 on, were sent a text message by or on behalf of Fiorella, for the purpose of soliciting a purchase of its goods and services, more than one time within any twelve-month period, where the persons’ telephone numbers had been listed on the National Do Not Call Registry for at least thirty days, and from whom Fiorella either did not obtain prior express written consent or claims to have obtained it in the same manner as it supposedly obtained it for the plaintiffs in this case.
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