I was called by Allfi, Inc (dba Allfi Solutions) in April 2016. I told Gene, the sales agent that I was on the national do not call registry at donotcall.gov and to put me on the internal do not call list as well as send me a copy of their do not call policy.
Then I was called again and again that same month. I kept telling them to stop.
In October 2017, Frank Shreyberg, the CEO of Allfi, hired an company to robo-dial cell phones, ask a half dozen "pre-qualifying" but complex questions about credit, revenue, loan programs, etc and then there was a "live transfer" of the call to Mark Anthony at Allfi. It was a bad connection so he called me back on his direct line. When the live transfer happen, Allfi had a message that stated that they were recording the call. However, when Mark Anthony called back, there was no such disclosure (which is required in California PC section 632.7)
Allfi is a notorious and constant violator of the TCPA (47 USC section 227(b)). I heard from a friend of mine, Jeff Hansen, that the US Supreme Court made a ruling on January 20, 2016 in a case called "Gomez" that when companies hire other companies to do their dirty work, then they are still responsible for the bad acts. He said this was called vicarious liability under federal common law.
Frank Shreyberg then called me directly after I complained. One would think that this would be a good thing. NOPE. All he did was threaten me, belittle me and then he engaged in extortionate threats. Wow! This is no way to run a business in the United States. And shame on Allfi for exporting American jobs to third world country boiler rooms filled with non-law-abiding telemarketers.
I have not met a single person yet to likes getting telemarketing calls.
I did a little research myself and found that telemarketers are supposed to registered with the California Department of Justice and post a $100,000 bond. Neither Allfi nor their telemarketing agent have registered. The fee is only $50. But failure to registered is a serious violation of the law. See California Business and Professions code section 17511.9.
If you have been called by Allfi, please message me. I have a lot of info on them now. Yelp is such an awesome web page and an amazing service to let us communicate like this and help us all save a headache, or two.
Allfi is also violating RICO by using the wires of the US to promote their common plan or scheme. You cans sued them civily under 18 USC section 1964(c) and get triple damages and mandatory attorney fees. Shreyberg admitted to me on a recorded call (he said he was recording it at the beginning) that he fully knew that violation 47 USC section 501 of the TCPA was a criminal act and that he does it every day. Wow!
In 2014, the 9th Circuit in Gomez v. Campbell-Ewald Co. (9th Cir. 2014) 768 F.3d 871, 878, regarding TCPA vicarious liability held:
“[t]his interpretation is consistent with that of the statute's implementing agency, which has repeatedly acknowledged the existence of vicarious liability under the TCPA. The Federal Communications Commission is expressly imbued with authority to "prescribe regulations to implement the requirements" of the TCPA. 47 U.S.C. § 227(b)(2). As early as 1995, the FCC stated that "[c]alls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call." In re Rules and Regulations Implementing the TCPA of 1991, 10 FCC Rcd. 12391, 12397 (1995).
More recently, the FCC has clarified that vicarious liability is imposed "under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers." In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574, 6574 (2013). Because Congress has not spoken directly to this issue and because the FCC's interpretation was included in a fully adjudicated declaratory ruling, the interpretation must be afforded Chevron deference. Metrophones Telecomm., Inc. v. Global Crossing Telecomm., Inc., 423 F.3d 1056, 1065 (9th Cir. 2005) (citing Nat'l Cable & Telecomms. a*s'n v. Brand X Internet Servs., 545 U.S. 967, 980-85, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005)) (other citations omitted), aff'd, 550 U.S. 45, 127 S. Ct. 1513, 167 L. Ed. 2d 422 (2007)” See alsoRestatement (Third) of Agency (2006) §§ 2.01, 2.03, 4.01 (explaining that agency may be established by express authorization, implicit authorization, or ratification)."Lawyer Ethics
As Judge Easterbrook of the Seventh Circuit recently explained in a TCPA case regarding calls to a non-debtor similar to this one:
The Telephone Consumer Protection Act...is well known for its provisions limiting junk-fax transmissions. A less-litigated part of the Act curtails the use of automated dialers and prerecorded messages to cell phones, whose subscribers often are billed by the minute as soon as the call is answered--and routing a call to voicemail counts as answering the call. An automated call to a landline phone can be an annoyance; an automated call to a cell phone adds expense to annoyance.
Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012).Craig v. County of Los Angeles (1990)
The FCC also recognized that “wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used.” In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 02-278, Report and Order, 18 F.C.C. Rcd. 14014, 14115 ¶ 165 (2003).
Standing is proper under Article III of the Constitution of the United States of America because Plaintiff’s claims state:
A valid injury in fact;
which is traceable to the conduct of Defendants;
and is likely to be redressed by a favorable judicial decision. See, Spokeo, Inc. v. Robins, 578 U.S.____(2016) at 6, and Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560. In order to meet the standard laid out in Spokeo and Lujan, Plaintiffs must clearly allege facts demonstrating all three prongs above.
The “Injury in Fact” Prong.
Plaintiff’s injury, in fact, must be both “concrete” and “particularized” in order to satisfy the requirements of Article III of the Constitution, as laid out in Spokeo (Id.). For an injury to be “concrete,” it must be a de facto injury, meaning that it actually exists. In the present case, Plaintiff was called on his cellular phone at least five (5) times by Defendants. In fact, Plaintiff expressly informed Defendants to cease and desist from all future telemarketing on the very first call. Such calls are a nuisance, an invasion of privacy, and an expense to Plaintiff in multiple ways. Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012). Defendant’s invasion of Plaintiff’s right to privacy is further exacerbated by the fact that Plaintiff’s phone number, at all times relevant to this litigation, was on the National Do-Not-Call Registry ( hereinafter, “DNC Registry”). As well, Plaintiff had no prior business relationship with Defendants prior to receiving the seriously harassing and annoying calls as well as the extortionate threats by Prosperify. All of Plaintiff’s injuries are concrete and de facto. For an injury to be “particularized” means that the injury must “affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 578 U.S. ___ (2016) at 14. In the instant case, it was Plaintiff’s phone that was called and it was Plaintiff himself who answered the calls. It was Plaintiff’s personal privacy and peace that was invaded by Defendant’s persistent phone calls using an ATDS and a pre-recoded message, despite Plaintiff having no prior business relationship with Defendants and Plaintiff’s attempt to avoid the damage by registering his number on the DNC Registry. Finally, Plaintiff alone is responsible to pay the bill on his cellular phone, his home phone and to pay the bill for his electric utility company kilowatt-hour power usage. All of these injuries are particularized and specific to Plaintiff and will be the same injuries suffered by Plaintiff.
The “Traceable to the Conduct of Defendants” Prong
The second prong required to establish standing at the pleadings phase is that Plaintiff must allege facts to show that his injury is traceable to the conduct of Defendants. In the instant case, this prong is met by the fact that the calls to Plaintiff’s cellular phone and home phone (land line) were placed either by Defendants directly, or by Defendants’ agent at the direction of Defendants.
The “Injury is Likely to be Redressed by a Favorable Judicial Opinion” Prong
The third prong to establish standing at the pleadings phase requires Plaintiff to allege facts to show that the injury is likely to be redressed by a favorable judicial opinion. In the present case, Plaintiff’s Prayers for Relief include a request for damages for each call made by Defendants, as authorized by statute in 47 U.S.C. § 227. The statutory damages were set by Congress and specifically redress the financial damages suffered by Plaintiff. Furthermore, Plaintiff’s Prayers for Relief request injunctive relief to restrain Defendants from the alleged abusive practices in the future. The award of monetary damages and the order for injunctive relief redress the injuries of the past and prevent further injury in the future. Because all standing requirements of Article III of the U.S. Constitution have been met, as laid out in Spokeo, Inc. v. Robins, 578 U.S. ___ (2016), Plaintiff has standing to sue Defendants on the stated claims.
“…[C]ourts in the Ninth Circuit have held that "allegations of nuisance and invasions of privacy in TCPA actions are concrete" injuries that establish standing. See Mbazomo v. ETourandtravel, Inc., 16-CV-2229-SB, 2016 U.S. Dist. LEXIS 170186, 2016 WL 7165693, at *2 (E.D. Cal. Dec. 8, 2016); Cabiness v. Educ. Fin. Sols., LLC, 16-CV-1109-JST, 2016 U.S. Dist. LEXIS 142005, 2016 WL 5791411, at *5 (N.D. Cal. Sept. 1, 2016); Juarez v. Citibank, N.A., No. 16-CV-1984-WHO, 2016 U.S. Dist. LEXIS 118483, 2016 WL 4547914, at *3 (N.D. Cal. Sept. 1, 2016); Hewlett v. Consolidated World Travel, Inc., 16-713 WBS AC, 2016 U.S. Dist. LEXIS 112553, 2016 WL 4466536, at *2 (E.D. Cal. Aug. 23, 2016); Cour v. Life360, Inc., 16-CV-00805-TEH, 2016 U.S. Dist. LEXIS 98945, 2016 WL 4039279, at *2 (N.D. Cal. July 28, 2016); Booth v. Appstack, Inc., No. 13-1553JLR, 2016 U.S. Dist. LEXIS 68886, 2016 WL 3030256, at *7 (W.D. Wash. May 25, 2016). In Mbazamo, the court held that a violation of the TCPA represents a concrete injury because "[t]he history of sustaining claims against both unwelcome intrusion into a plaintiff's seclusion and unceasing debt-collector harassment are squarely 'harm[s] that [have] traditionally been regarded as providing a basis for a lawsuit.'" Mbazomo, 2016 U.S. Dist. LEXIS 170186, 2016 WL 7165693, at *2 (quoting Spokeo, 136 S.Ct. at 1549-50). The court declined to follow Romero, explaining that Romero "improperly erodes the pleading standard set under Fed. R. Civ. P. 8(a) . . . . A plaintiff [need only] plausibly tie the alleged acts of the defendant to the alleged harms suffered." Id.
Similarly, in Cabiness, the court held that a violation of the TCPA represents a concrete injury because "[e]every unconsented call through the use of an ATDS to a consumer's cellular phone results in actual harm: the recipient wastes her time and incurs charges for the call if she answers the phone, and her cell phone's battery is depleted even if she does not answer the phone . . . . unsolicited calls also cause intangible harm by annoying the consumer." Cabiness, 2016 U.S. Dist. LEXIS 142005, 2016 WL 5791411, at *5 (internal citations omitted). And in Juarez, the court held that the plaintiff's allegation "that he received repeated unwanted calls that caused him aggravation, nuisance, and an invasion of privacy, is sufficient to allege a 'concrete' and 'particularized' injury that establishes standing under Spokeo." Juarez, 2016 U.S. Dist. LEXIS 118483, 2016 WL 4547914, at *3.
Allfi, Inc. Reviews
I was called by Allfi, Inc (dba Allfi Solutions) in April 2016. I told Gene, the sales agent that I was on the national do not call registry at donotcall.gov and to put me on the internal do not call list as well as send me a copy of their do not call policy.
Then I was called again and again that same month. I kept telling them to stop.
In October 2017, Frank Shreyberg, the CEO of Allfi, hired an company to robo-dial cell phones, ask a half dozen "pre-qualifying" but complex questions about credit, revenue, loan programs, etc and then there was a "live transfer" of the call to Mark Anthony at Allfi. It was a bad connection so he called me back on his direct line. When the live transfer happen, Allfi had a message that stated that they were recording the call. However, when Mark Anthony called back, there was no such disclosure (which is required in California PC section 632.7)
Allfi is a notorious and constant violator of the TCPA (47 USC section 227(b)). I heard from a friend of mine, Jeff Hansen, that the US Supreme Court made a ruling on January 20, 2016 in a case called "Gomez" that when companies hire other companies to do their dirty work, then they are still responsible for the bad acts. He said this was called vicarious liability under federal common law.
Frank Shreyberg then called me directly after I complained. One would think that this would be a good thing. NOPE. All he did was threaten me, belittle me and then he engaged in extortionate threats. Wow! This is no way to run a business in the United States. And shame on Allfi for exporting American jobs to third world country boiler rooms filled with non-law-abiding telemarketers.
I have not met a single person yet to likes getting telemarketing calls.
I did a little research myself and found that telemarketers are supposed to registered with the California Department of Justice and post a $100,000 bond. Neither Allfi nor their telemarketing agent have registered. The fee is only $50. But failure to registered is a serious violation of the law. See California Business and Professions code section 17511.9.
If you have been called by Allfi, please message me. I have a lot of info on them now. Yelp is such an awesome web page and an amazing service to let us communicate like this and help us all save a headache, or two.
Allfi is also violating RICO by using the wires of the US to promote their common plan or scheme. You cans sued them civily under 18 USC section 1964(c) and get triple damages and mandatory attorney fees. Shreyberg admitted to me on a recorded call (he said he was recording it at the beginning) that he fully knew that violation 47 USC section 501 of the TCPA was a criminal act and that he does it every day. Wow!
In 2014, the 9th Circuit in Gomez v. Campbell-Ewald Co. (9th Cir. 2014) 768 F.3d 871, 878, regarding TCPA vicarious liability held:
“[t]his interpretation is consistent with that of the statute's implementing agency, which has repeatedly acknowledged the existence of vicarious liability under the TCPA. The Federal Communications Commission is expressly imbued with authority to "prescribe regulations to implement the requirements" of the TCPA. 47 U.S.C. § 227(b)(2). As early as 1995, the FCC stated that "[c]alls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call." In re Rules and Regulations Implementing the TCPA of 1991, 10 FCC Rcd. 12391, 12397 (1995).
More recently, the FCC has clarified that vicarious liability is imposed "under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers." In re Joint Petition Filed by Dish Network, LLC, 28 FCC Rcd. 6574, 6574 (2013). Because Congress has not spoken directly to this issue and because the FCC's interpretation was included in a fully adjudicated declaratory ruling, the interpretation must be afforded Chevron deference. Metrophones Telecomm., Inc. v. Global Crossing Telecomm., Inc., 423 F.3d 1056, 1065 (9th Cir. 2005) (citing Nat'l Cable & Telecomms. a*s'n v. Brand X Internet Servs., 545 U.S. 967, 980-85, 125 S. Ct. 2688, 162 L. Ed. 2d 820 (2005)) (other citations omitted), aff'd, 550 U.S. 45, 127 S. Ct. 1513, 167 L. Ed. 2d 422 (2007)” See alsoRestatement (Third) of Agency (2006) §§ 2.01, 2.03, 4.01 (explaining that agency may be established by express authorization, implicit authorization, or ratification)."Lawyer Ethics
As Judge Easterbrook of the Seventh Circuit recently explained in a TCPA case regarding calls to a non-debtor similar to this one:
The Telephone Consumer Protection Act...is well known for its provisions limiting junk-fax transmissions. A less-litigated part of the Act curtails the use of automated dialers and prerecorded messages to cell phones, whose subscribers often are billed by the minute as soon as the call is answered--and routing a call to voicemail counts as answering the call. An automated call to a landline phone can be an annoyance; an automated call to a cell phone adds expense to annoyance.
Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012).Craig v. County of Los Angeles (1990)
The FCC also recognized that “wireless customers are charged for incoming calls whether they pay in advance or after the minutes are used.” In re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, CG Docket No. 02-278, Report and Order, 18 F.C.C. Rcd. 14014, 14115 ¶ 165 (2003).
Standing is proper under Article III of the Constitution of the United States of America because Plaintiff’s claims state:
A valid injury in fact;
which is traceable to the conduct of Defendants;
and is likely to be redressed by a favorable judicial decision. See, Spokeo, Inc. v. Robins, 578 U.S.____(2016) at 6, and Lujan v. Defenders of Wildlife, 504 U.S. 555 at 560. In order to meet the standard laid out in Spokeo and Lujan, Plaintiffs must clearly allege facts demonstrating all three prongs above.
The “Injury in Fact” Prong.
Plaintiff’s injury, in fact, must be both “concrete” and “particularized” in order to satisfy the requirements of Article III of the Constitution, as laid out in Spokeo (Id.). For an injury to be “concrete,” it must be a de facto injury, meaning that it actually exists. In the present case, Plaintiff was called on his cellular phone at least five (5) times by Defendants. In fact, Plaintiff expressly informed Defendants to cease and desist from all future telemarketing on the very first call. Such calls are a nuisance, an invasion of privacy, and an expense to Plaintiff in multiple ways. Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 638 (7th Cir. 2012). Defendant’s invasion of Plaintiff’s right to privacy is further exacerbated by the fact that Plaintiff’s phone number, at all times relevant to this litigation, was on the National Do-Not-Call Registry ( hereinafter, “DNC Registry”). As well, Plaintiff had no prior business relationship with Defendants prior to receiving the seriously harassing and annoying calls as well as the extortionate threats by Prosperify. All of Plaintiff’s injuries are concrete and de facto. For an injury to be “particularized” means that the injury must “affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, 578 U.S. ___ (2016) at 14. In the instant case, it was Plaintiff’s phone that was called and it was Plaintiff himself who answered the calls. It was Plaintiff’s personal privacy and peace that was invaded by Defendant’s persistent phone calls using an ATDS and a pre-recoded message, despite Plaintiff having no prior business relationship with Defendants and Plaintiff’s attempt to avoid the damage by registering his number on the DNC Registry. Finally, Plaintiff alone is responsible to pay the bill on his cellular phone, his home phone and to pay the bill for his electric utility company kilowatt-hour power usage. All of these injuries are particularized and specific to Plaintiff and will be the same injuries suffered by Plaintiff.
The “Traceable to the Conduct of Defendants” Prong
The second prong required to establish standing at the pleadings phase is that Plaintiff must allege facts to show that his injury is traceable to the conduct of Defendants. In the instant case, this prong is met by the fact that the calls to Plaintiff’s cellular phone and home phone (land line) were placed either by Defendants directly, or by Defendants’ agent at the direction of Defendants.
The “Injury is Likely to be Redressed by a Favorable Judicial Opinion” Prong
The third prong to establish standing at the pleadings phase requires Plaintiff to allege facts to show that the injury is likely to be redressed by a favorable judicial opinion. In the present case, Plaintiff’s Prayers for Relief include a request for damages for each call made by Defendants, as authorized by statute in 47 U.S.C. § 227. The statutory damages were set by Congress and specifically redress the financial damages suffered by Plaintiff. Furthermore, Plaintiff’s Prayers for Relief request injunctive relief to restrain Defendants from the alleged abusive practices in the future. The award of monetary damages and the order for injunctive relief redress the injuries of the past and prevent further injury in the future. Because all standing requirements of Article III of the U.S. Constitution have been met, as laid out in Spokeo, Inc. v. Robins, 578 U.S. ___ (2016), Plaintiff has standing to sue Defendants on the stated claims.
“…[C]ourts in the Ninth Circuit have held that "allegations of nuisance and invasions of privacy in TCPA actions are concrete" injuries that establish standing. See Mbazomo v. ETourandtravel, Inc., 16-CV-2229-SB, 2016 U.S. Dist. LEXIS 170186, 2016 WL 7165693, at *2 (E.D. Cal. Dec. 8, 2016); Cabiness v. Educ. Fin. Sols., LLC, 16-CV-1109-JST, 2016 U.S. Dist. LEXIS 142005, 2016 WL 5791411, at *5 (N.D. Cal. Sept. 1, 2016); Juarez v. Citibank, N.A., No. 16-CV-1984-WHO, 2016 U.S. Dist. LEXIS 118483, 2016 WL 4547914, at *3 (N.D. Cal. Sept. 1, 2016); Hewlett v. Consolidated World Travel, Inc., 16-713 WBS AC, 2016 U.S. Dist. LEXIS 112553, 2016 WL 4466536, at *2 (E.D. Cal. Aug. 23, 2016); Cour v. Life360, Inc., 16-CV-00805-TEH, 2016 U.S. Dist. LEXIS 98945, 2016 WL 4039279, at *2 (N.D. Cal. July 28, 2016); Booth v. Appstack, Inc., No. 13-1553JLR, 2016 U.S. Dist. LEXIS 68886, 2016 WL 3030256, at *7 (W.D. Wash. May 25, 2016). In Mbazamo, the court held that a violation of the TCPA represents a concrete injury because "[t]he history of sustaining claims against both unwelcome intrusion into a plaintiff's seclusion and unceasing debt-collector harassment are squarely 'harm[s] that [have] traditionally been regarded as providing a basis for a lawsuit.'" Mbazomo, 2016 U.S. Dist. LEXIS 170186, 2016 WL 7165693, at *2 (quoting Spokeo, 136 S.Ct. at 1549-50). The court declined to follow Romero, explaining that Romero "improperly erodes the pleading standard set under Fed. R. Civ. P. 8(a) . . . . A plaintiff [need only] plausibly tie the alleged acts of the defendant to the alleged harms suffered." Id.
Similarly, in Cabiness, the court held that a violation of the TCPA represents a concrete injury because "[e]every unconsented call through the use of an ATDS to a consumer's cellular phone results in actual harm: the recipient wastes her time and incurs charges for the call if she answers the phone, and her cell phone's battery is depleted even if she does not answer the phone . . . . unsolicited calls also cause intangible harm by annoying the consumer." Cabiness, 2016 U.S. Dist. LEXIS 142005, 2016 WL 5791411, at *5 (internal citations omitted). And in Juarez, the court held that the plaintiff's allegation "that he received repeated unwanted calls that caused him aggravation, nuisance, and an invasion of privacy, is sufficient to allege a 'concrete' and 'particularized' injury that establishes standing under Spokeo." Juarez, 2016 U.S. Dist. LEXIS 118483, 2016 WL 4547914, at *3.