12th TCPA Action vs. Mutual of Omaha Also Cites Violations of N.M. Statute
Mutual of Omaha hired a third-party vendor to sell Medicare supplemental insurance coverage through unwanted phone solicitations, in violation of the Telephone Consumer Protection Act and the New Mexico Unfair Practices Act, alleged plaintiff Michael Van Baalen’s April 3 state court complaint, removed Friday by Mutual of Omaha to U.S. District Court for New Mexico in Albuquerque. Mutual disputes all of Van Baalen’s allegations, believes the complaint lacks any merit, and denies that Van Baalen “has been harmed in any way,” said its notice of removal (docket 1:23-cv-00416).
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The complaint names as defendants Mutual, third-party Affordable Insurance Group (AIG), AIG’s owner Andrew Shader and five Jane Does who initiated the calls to Van Baalen. “Their true identities and whereabouts” will be disclosed during discovery “so that process may be served on them,” said the complaint. It’s the 12th TCPA action filed against Mutual since the first-filed case in November 2016, court records show.
Shader instructed the Jane Does that any consumers who answered a telemarketing robocall and expressed interest were to be “live-transferred” directly to AIG’s call center to “continue the sales pitch,” said the complaint. The defendants use robocalling “because it allows for thousands of automated sales calls to be initiated in a very short period of time, but their sales representatives only need actually spend time on the phone with consumers who respond positively,” it said. The defendants “thereby unlawfully shift the cost of aggravation and wasted time to the public at large and away from themselves where it belongs,” it said.
Mass-marketing by robocall “results in consumer complaints,” said Van Baalen’s lawsuit. Based on the volume of complaints the defendants received, including from people who allowed themselves to be transferred to AIG’s live call center, the defendants “had an actual awareness or should have had an actual awareness” that their robocalls were directed to people who objected to the calls, and to people whose numbers were listed on the national do not call registry, it said.
The defendants use fake names in their initial telephone solicitations “because they know they are engaged in unlawful telemarketing,” said the complaint. After weeks of “repetitive robocall harassment,” Van Baalen decided to answer one of the calls, and agreed to be live-transferred to the AIG call center. The representative who came on the line identified himself as an agent of the Medicare Enrollment Center, a fake name, it said.