(CN) — A federal judge has denied a New York-based telemarketer's request to toss consumer and privacy claims brought by a vexed member of the national do-not-call registry.
Anton A. Ewing, a former nuclear physicist and current financial planner from San Diego says that beginning around January 2017 he began to experience something many Americans have become well acquainted with in the modern era: unwelcome phone calls from a telemarketer. Around this time, Ewing says he received a series of phone calls from BF Advance, a New York company that Ewing says tried to entice him into taking out a loan and divulging his social security number.
Ewing says BF Advance and its manager Joseph Cohen made the despite Ewing’s number being registered with the National Do-Not-Call Registry. Over the course of the next three years, Ewing says he has recorded at least nine unwanted phone calls from the company — calls he says were easily recognizable as robocalls given the distinctive bubble-like popping sound that kicked off each call.
In September 2020, Ewing took BF Advance and Cohen to court over the unwanted phone calls. Representing himself — he also has a juris doctorate —Ewing says BF and Cohen violated the Telephone Consumer Protection Act and a pair of California privacy laws.
The defendants asked U.S. District Judge Cynthia Bashant to dismiss Ewing's suit, arguing a federal court in California lacks jurisdiction in the case.
But Bashant, a Barack Obama appointee, was not swayed by BF Advance’s assertions. While she agreed a federal judge in New York could hear the case, she noted Ewing lives in California and that BF Advance appears to have directed its telemarketing activities in California — making the Golden State an equally suitable place to resolve the case.
While BF and Cohen argued it would be unreasonable to expect them to have to travel across the country to mount a defense, Bashant said the technology and communication tools of today make that argument weak.
“Even if it is more burdensome for defendants to litigate in California given that Mr. Cohen’s residence and BFA’s principal place of business are in New York, ‘with the advances in transportation and telecommunications and the increasing interstate practice of law, any burden is substantially less than in days past,’” Bashant wrote in the 13-page ruling issued Monday.
The judge found Ewing's claims strong enough to survive a dismissal motion, at least at this early stage in the case.
In an email, Ewing applauded the judge for putting forth what he saw as a thoughtful and well-written judgment. He said Monday’s ruling should send a clear message to telemarketers that their conduct will not go unchecked.
“What this shows is that telemarketers, no matter where they hide (location), nor who they hide behind (agency), they will be sued in the district where the victim is located,” Ewing said in the email. “That is what Congress intended and that is how it should be.”
Ewing said he intends to do his part in holding telemarketers accountable, saying that he wants all telemarketers out there to know “if you call my number, I will sue you.”
His website for his financial service offerings reiterate this warning to would-be telemarketers, writing simply on his site’s home page “If you are a telemarketer and you try calling, you will be sued under 47 USC section 227.”
According to the Courthouse News database, to date Ewing has filed nearly 80 similar actions against other telemarketers.
Representatives for BF Advance did not respond to request for comment by press time Tuesday afternoon.
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