Aflac Plans to Seek TCPA Class Action’s Dismissal, Says Its Rule 26(f) Report

Aflac intends to file a motion to dismiss plaintiff Stewart Smith’s Feb. 15 Telephone Consumer Protection Act class action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, said the insurer’s Rule 26(f) report Wednesday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia. Smith’s complaint alleges that in Aflac’s “overzealous attempt” to market its motor vehicle warranties, it willfully or knowingly made, and continues to make, unsolicited telemarketing phone calls to numbers listed on the national do not call registry (see 2402160002). In discovery, Aflac intends to seek any records from Smith to support his TCPA claim, such as call records, recordings or notes of calls, said the Rule 26(f) report. But Aflac doesn’t think that discovery should proceed until the court issues a decision on Aflac’s motion to dismiss, which will resolve this case, it said. Smith hasn’t sufficiently alleged a claim for relief, “and proceeding to discovery while Aflac’s dispositive motion is pending would be a waste of judicial and party resources,” it said. Should the court deny the motion to dismiss, Aflac thinks that discovery should move quickly, and could be concluded within 60 days of Aflac’s answer to the complaint, it said. Should the case proceed to class certification, expert witnesses may be needed, said the report: “Aflac’s position is that staggered reports would be appropriate in this case because it is most likely that the experts will testify in support of or against class certification, and therefore Aflac’s expert will likely be a rebuttal expert only.” Aflac attempted three times between March 11 and 19 to confer with Smith’s counsel but got no response, so it submitted the report “without input” from the plaintiff, it said.