James Julian v. Kirkendall Dwyer II, LLP, et al.

Summary

The United States District Court for the District of Kansas denied Kirkendall Dwyer II, LLP’s motion to dismiss claims arising from alleged unsolicited telemarketing calls in violation of the Telephone Consumer Protection Act and Kansas Consumer Protection Act. The court held that the complaint plausibly connected Kirkendall to more than one call and that the alleged alternative explanation involving an insurance company did not overcome that plausibility at the pleading stage. The court also declined to hold that the Kansas Consumer Protection Act claim was barred as a matter of law because some calls concerned insurance.

Holdings

1. The complaint plausibly alleged that more than one of the challenged calls was made by or on behalf of Kirkendall, so the TCPA claims could not be dismissed on the theory that an insurance company was the obvious source of the calls.
2. The court could not conclude as a matter of law at the pleading stage that the KCPA claim was barred merely because some of the challenged telemarketing calls concerned insurance.

Questions Presented

1. Whether the complaint plausibly alleged that more than one of the challenged telemarketing calls was made by or on behalf of Kirkendall for purposes of the TCPA claims.
2. Whether the Kansas Consumer Protection Act claim was barred at the pleading stage because some of the challenged calls concerned insurance, which is excluded from the KCPA definition of consumer transaction.

Disposition

other