Mutual of Omaha Asserts 31 Affirmative Defenses vs. Claims of TCPA, FTSA Wrongdoing

for Southern Florida in Fort Lauderdale to plaintiff Deborah Collins’ Dec. 26 class action (see 2312270001). Collins alleges that Mutual hired Golden Ridge to engage in automated telemarketing calls by contacting numbers listed on the national do not call registry, in violation of the TCPA. The Florida resident further alleges that Golden Ridge uses automated systems to make telemarketing calls from Florida, and that by doing so, Golden Ridge and Mutual violated the FTSA. But Mutual’s answer asserts 31 affirmative defenses, including that the court lacks personal jurisdiction over Mutual because the insurer isn’t “at home” in Florida and didn’t “place, authorize, or direct any of the calls at issue,” it said. As such, Mutual isn’t subject “to specific or general jurisdiction in Florida,” and it intends to challenge the court’s “personal jurisdiction over it on that basis,” it said. Mutual “reserves and expressly does not waive its right to challenge” the court’s personal jurisdiction, it said. The TCPA and the FTSA violate the First Amendment because “they impose content-based restrictions on speech that fail to withstand strict scrutiny,” said Mutual’s answer. The application of the TCPA and FTSA on which the complaint is based, including the imposition of statutory damages on Mutual, would violate the Constitution’s due process provisions, it said. Certain definitions contained in the TCPA render the statute “unconstitutionally vague,” and the statutory penalties that Collins seeks are “excessive,” it said. Any and all claims brought in Collins’ complaint are barred because Mutual “possessed a good-faith belief that it was not committing any wrongdoing,” it said. Any TCPA and FTSA violations resulted from a bona fide error, “despite reasonable practices to prevent violations” of those statutes and their related regulations, it said. Collins and her putative class members lack standing to bring the claims alleged in the complaint, said Mutual’s answer. Any harm allegedly caused by the calls at issue, which Mutual denies, isn’t “fairly traceable to any violation” that Mutual allegedly committed, and because Collins may not have suffered any Article III harm, it said. Any damages, injury, violation or wrongdoing alleged in the complaint was caused by third parties or Collins herself, for which Mutual can’t be held “vicariously liable,” it said. To the extent vendors or contractors or unrelated nonparties caused any damages, injury, violations of the law or wrongdoing, or engaged in the conduct alleged in the complaint, those entities or individuals “acted outside the scope, or in violation, of the parties’ agreements,” and Mutual didn’t “approve of that conduct,” it said. Even if Mutual could be held vicariously liable, its liability “must be eliminated or reduced by an amount proportionate to the fault attributable to third parties” or to Collins, it said.