Greenspoon Marder Successfully Represents Prospects DM, Inc. in Avoidance of Class Action Claims

Sep 27, 2023

Fort Lauderdale, Fla. – September 27, 2023 – Greenspoon Marder, representing Prospects DM, Inc. (“Prospects”), is pleased to announce a significant legal win in the recent Telephone Consumer Protection Act (“TCPA”) case of Nelums v. America’s Lift Chairs, LLC, et al., No. 1:22-cv-00739.

The case involved allegations of TCPA violations brought by Plaintiff Joseph Nelums against Prospects. In this lawsuit, Plaintiff had claimed that Prospects had violated TCPA regulations, specifically pertaining to the use of prerecorded voices and contacting telephone numbers registered on the National Do-Not-Call Registry. Plaintiff alleged that Prospects called him to solicit him to purchase America’s Lift Chairs, LLC’s (“America’s Lift Chairs”) products, and had named America’s Lift Chairs as a defendant, too. Plaintiff sought to represent nationwide classes on both TCPA claims. The same group of lawyers representing Nelums had also filed a lawsuit in the Southern District of Georgia against America’s Lift Chairs and Prospects regarding the same calls on behalf of the same nationwide classes, but by a different plaintiff, Crystal Chapman, in Chapman v. America’s Lift Chairs, LLC, No. 4:21-cv-00245-RSB-CLR. Prospects had successfully obtained a dismissal from that lawsuit on the grounds that it was outside that court’s personal jurisdiction, which precipitated the filing of the Nelums lawsuit.

Prospects argued and submitted evidence showing that Nelums had visited a website run by a third party where he expressed interest in the website’s offer of free samples and agreed to receive the telephone calls at issue from a fictitious name used by Prospects as well as the site’s Terms and Conditions by clicking a button to make a submission. The website’s Terms and Conditions contained an arbitration agreement and a class action waiver. Nelums denied ever visiting the website and further argued that, even if he had, Prospects was not a party to the arbitration agreement or a beneficiary entitled to enforce it against Nelums.

The District Court ruled in Prospects’ favor, compelling arbitration of the claims based on the website’s Terms and Conditions. The Court agreed with Greenspoon Marder’s arguments that to avoid enforcement of the delegation clause, Nelums was required to raise a challenge specific to that clause, distinct from any challenge to the arbitration agreement in general. The Court found that because Nelums’ arguments against the delegation clause were the same as those raised against the arbitration agreement – that he never agreed to either, and that Prospects lacked standing to enforce either – the delegation clause required Nelums to arbitrate the gateway question of arbitrability, and the Court therefore dismissed the claims against Prospects.

Prospects’ co-defendant resolved the same TCPA claims by entering into a class action settlement agreement resulting in a $1.7 million settlement, while the claims against Prospects were dismissed in both lawsuits on two different grounds, one of which required arbitration on an individual basis only. This success underscores the importance of meticulous attention to detail, not only in the language of arbitration agreements and website design but also in establishing the factual and legal basis for enforcement, even when a defendant’s name is not explicitly mentioned.

Prospects was represented by Litigation partners Jeffrey A. Backman and Roy Taub in both the Nelums and Chapman matters. Greenspoon Marder’s Class Action Defense practice group has a proven track record of successfully defending against hundreds of TCPA class actions and obtaining rulings compelling arbitration.

About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 225 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has maintained a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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This Greenspoon Marder LLP Client Alert is issued for informational purposes only and is not intended to be construed or used as general legal advice nor a solicitation of any type. Please contact the author(s) or your Greenspoon Marder LLP contact if you have any questions regarding the currency of this information. The hiring of a lawyer is an important decision. Before you decide, ask for written information about the lawyer’s legal qualifications and experience.

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Greenspoon Marder Successfully Represents Prospects DM, Inc. in Avoidance of Class Action Claims

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