Rocket Concurrently Moves to Dismiss TCPA Claims, Compel Them to Arbitration
Rocket Mortgage filed concurrent motions Friday in U.S. District Court for Arizona in Phoenix to dismiss plaintiff Darren MacDonald’s Dec. 11 Telephone Consumer Protection Act class action and to compel his claims to arbitration. MacDonald alleges that Rocket places unsolicited…
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calls and sends unsolicited text messages to consumers without their consent, including to numbers listed on the national do not call registry (see 2312120001). He further alleges that Rocket employees have listed cold calling as a core part of their job descriptions in their Linkedin profiles. But MacDonald’s lawsuit “fails at its inception for want of the requisite factual allegations to sustain it,” said the company’s motion to dismiss (docket 2:23-cv-02558). To state his TCPA claims, MacDonald must plead factual allegations that he received two or more telephone solicitation calls from Rocket within the same 12-month period, which “he has failed to do,” it said. The complaint at best offers “only conclusory allegations” that he received one solicitation call from Rocket in June 2022. Recognizing this isn’t enough, MacDonald also pleads that the company sent him a text message the same day with a Rocket employee’s name and phone number, it said. But the text message doesn’t and can’t qualify as a second solicitation call as a matter of law “because it contains no solicitation of any kind,” it said. Rocket’s motion to compel said the plaintiff agreed to arbitrate, not litigate, any claims for violation of the TCPA against Rocket on an individual, not class basis. In “direct breach of that agreement,” MacDonald filed his putative class action lawsuit against the company asserting claims for violation of the TCPA, it said. The court should enforce MacDonald’s agreement and compel his TCPA individual claims to arbitration, it said. The facts relevant to Rocket’s motion to compel “are straightforward,” it said. MacDonald in June 2022 completed an online submission at Rocket’s website to request information, by calls or text messages, about Rocket’s mortgage products, it said. The online submission contained Rocket’s complete terms of use, including the TCPA-related arbitration provision, readily available to MacDonald for review, it said. It “expressly informed” him that by clicking a submission button, he was agreeing to the TCPA-related arbitration and other provisions in the terms of use, it said.