Monday, December 5 2022

A proposed class action lawsuit alleges that Final Expense Assistant and TZ Insurance Solutions unlawfully made unsolicited telemarketing calls to phone numbers they allegedly obtained through a trick of a coin toss.

According to the 19-page case, telemarketer Final Expense and insurance broker TZ “flooded” a Florida woman’s cellphone with unwanted telemarketing calls throughout the first few months of 2020, even though her number had been registered on the National Do Not Call Registry.

The lawsuit alleges the companies obtained the plaintiff’s phone number in January 2020 after her name and phone number were entered into for a chance to “win $50,000”, although the consumer says he does not remember having participated in the competition.

Shortly after entering the contest, the plaintiff began receiving a flurry of calls from Final Expense on behalf of TZ, according to the case. The calls apparently sought insurance for funerals and “final expenses”, which the plaintiff found “morbid and disturbing”, the complaint states.

“Rather than making money, Plaintiff and putative Class Member received disruptive and unwanted telemarketing calls regarding the troubling subject of funeral insurance,” pings the filing.

The lawsuit alleges that the companies violated the Telephone Consumer Protection Act (TCPA) by unlawfully contacting telephone numbers on the Do Not Call Registry without obtaining consent through “clear and visible”.

According to the complaint, Final Expense attempted to persuade the complainant that she had given express written consent to receive the telemarketing calls. The telemarketer showed the complainant a “Trust Form” document, which the company said indicated that her information had been used to “enter” the contest, according to the case.

As the filing indicates, the “opt-in” page contained “a hyperlink to the camouflaged words ‘marketing partners,’ which directs a visitor who clicks on the hyperlink to a web page listing hundreds of companies, including including Final Expense”. The lawsuit disputes that the sweepstakes website exists simply to obtain consumer data.

“The Super-Sweepstakes website has been designed to feature a strong, clear and visible promotion of a ‘contest’ to win $50,000 with a [sic]overshadowed and camouflaged disclosure as to the true purpose of the website: to obtain consumer data for telemarketing purposes, including facilitating the sale of “funeral insurance”.

The lawsuit argues that camouflaged disclosure of “marketing partners” is not a valid form of consent under the TCPA because it is not obvious to a reasonable consumer. Instead, Final Expense’s disclosure is “deliberately misleading,” the complaint alleges.

The lawsuit appears to represent the following class:

“For the period from four years prior to the filing of this complaint to the date a class is certified, all persons in the United States whose: (1) telephone numbers in the defendants’ records that allegedly show numbers were submitted via the ‘Super website; (2) where such person has received more than one telephone call on behalf of TZ or Final Expense (or someone acting on its behalf) within a 12 month period; (3) that person’s number had been on the Do Not Call Registry for more than 31 days at the time the calls were received; and (4) the person’s phone number was either a landline or a cell phone, where the subscriber was an individual rather than a business.

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