Judge Schedules Initial Conference in TCPA Suit Against Allied Vehicle Protection
Extended warranty seller one of several named defendents in robocall lawsuit
Posted by Tony Russell
May 26, 2020
UPDATE: On May 5, 2020, Peggy Kuo, United States Magistrate Judge in United States District Court, Eastern District of New York scheduled an initial conference for all parties involved in Kopelevich v. Desilva Automotive Services, LLC et al, case number 1:20-cv-01987.
Plaintiff Mikhail Kopelevich accuses the defendants of multiple TCPA violations in the complaint filed on April 30th.
An initial conference is one of the first steps of the discovery process in a civil case.
A copy of our original post from May 1 is below.
On Thursday, a New York resident filed a federal lawsuit in the Eastern District of New York against Desilva Automotive Services, LLC, which does business under the name Allied Vehicle Protection, its owner, and other parties who do business with the firm.
Mikhail Kopelevich of Brooklyn, New York accuses Allied Vehicle Protection of numerous unsolicited telemarketing calls in an attempt to sell him an extended car warranty using spoofed numbers between October of 2019 to April of 2020.
The TCPA makes it unlawful "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" of the FCC.
According to the FCC, spoofing is when a caller deliberately falsifies the information transmitted to your caller ID display to disguise their identity. "Scammers often use neighbor spoofing so it appears that an incoming call is coming from a local number, or spoof a number from a company or a government agency that you may already know and trust," the FCC says.
The plaintiff alleges the calls were made using automated dialing equipment and contained a pre-recorded message on behalf of Allied and the defendants. Per the complaint, the defendants did not have the required consent from Kopelevich for the robocalls as outlined in the Telephone Consumer Protection Act of 1991.
"Express Written Consent"
The TCPA requires "prior express written consent" from consumers for autodialed or pre-recorded telemarketing robocalls to home and mobile phones.
Robodialers and other scam telemarketers are often very careful not to release details of who the the robocalls are from in an effort to avoid fines and lawsuits, usually waiting until the customer has made a purchase before identifying themselves. Kopelevich purchased an extended warranty on March 6th, and received subsequent materials in the mail which is presumably how he identified Desilva Automotive Services and the other defendants.
The suit also alleges that the Desilva lacked an internal "do not call" policy, which is also a violation of TCPA.
The other named defendants in the complaint are:
• Vajira Samararatne, Desilva Automotive Service officer and shareholder,
• Palmer Administrative Services, Inc.
• Michael Shaftel, corporate officer and shareholder of Palmer Administrative Services, Inc.
• Atlantic Specialty Insurance Company
• OneBeacon Insurance Group, Ltd.
• PayLink Payment Plans, LLC, doing business as PayLink Direct
The suit claims that corporate officers involved in robodialing may be held personally liable under the TCPA.
Kopelevich is seeking between $500 and $1500 per call as allowed under TCPA plus an additional $3000 in statutory damages per call for 30 total calls. The suit also seeks interest, costs, and attorneys' fees from the defendants as well as an injunction from the court barring them from robodialing.
A copy of the lawsuit can be found here.
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