CLASS COMPLAINT

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

JONATHAN AVERY, on behalf of himself 

and all others similarly situated.

 Plaintiff,

 v.

NATIONAL CONGRESS OF 

EMPLOYERS, INC. AND BENEFYTT 

TECHNOLOGIES, INC.,

 Defendants.

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Civil Action No.

Jury Trial Demanded

CLASS ACTION COMPLAINT

Plaintiff, JONATHAN AVERY (“Plaintiff”, “Mr. Avery” or “Avery”), individually and 

on behalf of all other similarly situated, and demanding a trial by jury, brings this action against 

Defendants, NATIONAL CONGRESS OF EMPLOYERS, INC. (hereinafter “NCE”) and

BENEFYTT TECHNOLOGIES, INC. (hereinafter “Benefytt”) (hereinafter collectively referred 

to as “Defendants”) for violations of the Telephone Consumer Protection Act (TCPA), 47 

U.S.C. §227, et seq. In support of this Complaint, Plaintiff, individually, and on behalf of all 

others similarly situated asserts as follows:

BACKGROUND:

TELEMARKETING AND THE TCPA

1. In 1991, Congress enacted the Telephone Consumer Protection Act (“TCPA”) to 

protect consumers’ privacy rights, namely, the right to be left alone from unwanted 

telemarketing calls. A leading sponsor of the TCPA described unwanted telemarketing calls as 

“the scourge of modern civilization.” 137 Cong. Rec. 30821 (1991).

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CLASS COMPLAINT

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2. The TCPA also affords special protections for people who registered their phone 

numbers on the National Do Not Call Registry and nonetheless received telemarketing calls for 

which they did not expressly consent.. 

3. In 2019, the FTC received over 5.4 million complaints from US residents about 

unwanted calls. FTC: What Do Not Call Complaints are telling us (Oct. 17, 2019), available at: 

https://www.consumer.ftc.gov/blog/2019/10/what-do-not-call-complaints-are-telling-us. 

4. The private right of enforcement of the TCPA is critical to stopping the 

proliferation of these unwanted telemarketing calls. For example, while the Federal 

Communications Commission levied over $200 million in penalties against telemarketers 

between 2015 and 2018, it collected less than $7,000 of that amount. See Sarah Krouse, The 

FCC Has Fined Robocallers $208 Million. It’s Collected $6,790, THE WALL STREET JOURNAL,

(March 28, 2019) available at: https://www.wsj.com/articles/the-fcc-has-fined-robocallers-208-

million-its-collected-6-790-11553770803.

THE PARTIES

5. Plaintiff and putative class-representative, Jonathan Avery is a natural person 

and adult, who at all times relevant hereto, resided in Royse City, Texas 75189.

6. Defendant NCE is an insurance provider which solicits, inter alia, health 

insurance to consumers.

7. NCE maintains its headquarters at 1000 North West Street, Suite 1200, 

Wilmington, Delaware 19801.

8. Defendant Benefytt is a technology company that markets and administers 

insurances services. 

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9. Benefytt maintains its headquarters at 3450 Buschwood Park Drive, Tampa 

Florida 33618.

10. Plaintiff brings this Action in his individual capacity and on behalf of all other 

similarly situated seeking damages and any other available legal or equitable remedies resulting 

from the unlawful actions of Defendants, in negligently, knowingly, and/or willfully contacting 

Plaintiff and other Class member on their cellular telephone in violation of the Telephone 

Consumer Protection Act (TCPA), 47 U.S.C. §227, et seq. and related regulations, specifically 

the National Do-Not-Call provisions where the telephone number provided to Defendant was 

registered on the National Do-Not-Call list.

JURISDICTION AND VENUE

11. This Court has original subject-matter jurisdiction over the TCPA claims in this 

action under 28 U.S.C. § 1331, which grants this court original jurisdiction of all civil actions 

arising under the laws of the United States. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 

386-87 (2012) (confirming that 28 U.S.C. § 1331 grants the United States district courts federalquestion subject-matter jurisdiction to hear private civil suits under the TCPA).

12. Furthermore, this Court has subject matter jurisdiction pursuant to 28 U.S.C. §

1332(d)(2)(A), because this case is a class action where the aggregate claims of all members of 

the proposed Class are in excess of $5,000,000.00, exclusive of interest and costs.

13. This Court has personal jurisdiction over Defendants because Defendants

regularly conduct business in the State of Texas.

14. Furthermore, Defendant Benefytt, acting at the direction of Defendant NCE,

placed phone calls to Plaintiff at his “469” area code, associated with the Dallas, Texas region.

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15. Defendant Benefytt also placed calls from a number which appeared on 

Plaintiff’s caller ID to be from the “469” area code.

16. Plaintiff resided within this District at all times relevant hereto. Plaintiff 

received the calls at issue and experienced the associated harm within this District.

17. A substantial portion of the acts and omissions described herein occurred within 

this District.

18. Accordingly, personal jurisdiction exists and venue is proper pursuant to 28 

U.S.C. §1391 (b)(2).

FACTS PERTAINING TO PLAINTIFF

19. At all times relevant hereto, Plaintiff, Jonathan Avery, was the owner of a

cellular phone, the number for which was (469) XXX-3933.

20. Plaintiff’s phone was primarily used for residential purposes.

21. Plaintiff registered this telephone number on the National Do-Not-Call list on or 

around May 18, 2020.

22. Mr. Avery registered that cell phone number on the Do Not Call list in order to 

obtain solitude from invasive and harassing telemarketing calls.

23. Mr. Avery did not consent to being contact by Defendants.

24. Upon information and belief, on or around October 28, 2020 Defendant Benefytt 

began to contact Mr. Avery on a repetitive and continuous basis for the purpose of soliciting 

health insurance on behalf of Defendant NCE.

25. Defendants’ phone calls to Mr. Avery utilized an automatically generated and/or 

pre-recorded voice.

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26. For instance, when Plaintiff answered the phone, he was greeted not by a live 

agent, but by an automated questionnaire regarding Plaintiff’s personal information.

27. Defendant placed at least 5 calls to Plaintiff’s telephone soliciting health 

insurance for NCE.

28. A non-exhaustive list of the offending phone calls placed to Plaintiff’ is below:

29. Plaintiff did not request information from either of Defendants regarding health 

insurance prior to the campaign of calls.

30. Defendants’ telephone calls were not made for “emergency purposes” but rather 

were to solicit health insurance.

31. Plaintiff found Defendants’ repeated calls annoying, frustrating, upsetting, 

harassing, and an invasion of his privacy.

32. The calls from Defendants were precisely the type of communications Mr. Avery 

sought to avoid when he registered his number on the Do Not Call registry.

33. Defendants’ text messages intruded upon the right of Plaintiff and the putative 

class members to be free from invasion of their seclusion.

Direct and Vicarious Liability

34. To the extent Defendants outsource their illegal robocalling to various agents, 

call centers and vendors, Defendants are still liable for calls that violate the TCPA.

Date: Caller ID:

October 28, 2020 3:49 pm 469-707-5143

November 4, 2020 10:33 am 469-707-8154

November 11, 2020 10:41 am 469-707-2871

December 8, 2020 9:39 am 469-707-6234

December 9, 2020 9:26 am 469-707-6915

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35. On May 9, 2013, the FCC determined that this was not a basis for avoiding 

liability within a Declaratory Ruling that held that sellers may not avoid liability by outsourcing 

telemarketing:

[A]llowing the seller to avoid potential liability by outsourcing 

its telemarketing activities to unsupervised third parties would 

leave consumers in many cases without an effective remedy for 

telemarketing intrusions. This would particularly be so if the 

telemarketers were judgment proof, unidentifiable, or located 

outside of the United States, as is often the case. Even where 

third-party telemarketers are identifiable, solvent, and amenable 

to judgment limiting liability to the telemarketer that physically 

places the call would make enforcement in many cases 

substantially more expensive and less efficient, since consumers 

(or law enforcement agencies) would be required to sue each 

marketer separately in order to obtain relief. As the FTC noted, 

because “[s]ellers may have thousands of “independent” 

marketers, suing one or a few of them is unlikely to make a 

substantive difference for consumer privacy. 

May 2013 FCC Ruling, 28 FCC Rcd at 6588 (internal citations omitted).

36. Moreover, the May 2013 FCC ruling rejected a narrow view of TCPA liability, 

including the assertion that a seller’s liability requires a finding of formal actual agency and 

immediate direction and control over third parties who place a telemarketing call. Id. At 6587 n. 

107.

37. The evidence of circumstances pointing to apparent authority on behalf of the 

telemarketer “should be sufficient to place upon the seller the burden of demonstrating that a 

reasonable consumer would not sensibly assume that the telemarketer was acting as the seller’s 

authorized agent.” Id. At 6593.

38. Defendant NCE hired, permitted, and enjoyed the benefits of agents, call centers 

and vendors, such as Benefytt’s mass robocalling.

39. Defendant NCE acted as the principal and Benefytt acted as its agent.

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40. NCE is not permitted under the law to outsource and contract its way out of 

liability by directing and benefitting from unlawful robocalls made by agents, call centers and 

vendors.

41. Because the calls at issue were made by Benefytt, at the direction of NCE, 

Benefytt is directly liable and NCE is vicariously liable.

Class Allegations

42. Pursuant to Fed. R. Civ. P. 23, Plaintiff brings this lawsuit as a class action on 

behalf of himself and all others similarly situated. This action satisfies the requirements of

numerosity, commonality, typicality, and adequacy of representation. commonality, typicality, 

and adequacy of representation.

43. Defendants lack policies in place to assure that it has valid consent before 

sending messages or making calls using an automatically generated and/or pre-recorded voice.

44. Accordingly, Defendants placed a high volume of calls to cellular phones 

without valid consent of the called party.

45. Furthermore, Defendants lack policies in place to assure it has valid consent or a 

pre-existing business relationship with a called party before making telemarketing calls.

46. Defendants also lack policies in place to assure that numbers that receive 

telemarketing calls were not registered on the Do Not Call Registry.

47. Accordingly, Defendants placed a high volume of calls to numbers listed on the 

Do Not Call Registry without consent or an existing business relationship.

48. Plaintiff seeks to represent the following classes:

227(b) Class: All persons in the United States to whose cellular 

telephone numbers Benefytt called on behalf of NCE using 

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prerecorded or artificial voice which was not made with the person’s 

prior express consent from four years prior to the date of the filing of 

the original lawsuit to the date of class certification.

227(c) Class: For the period from four years prior to the filing of this 

suit until the date a class is certified, all persons in the United States 

who: (1) subscribe to cellular telephones; (2) received more than one 

telephone call or text message from Benefytt on behalf of NCE on 

that phone during a 12-month period; and (3) whose phone numbers 

were listed on the Do Not Call Registry for more than 31 days at the 

time the calls were received where there was not valid express written 

consent for those calls.

49. Plaintiff reserves the right to add administrative subclasses, or to amend the 

definition of the proposed class, during the lawsuit proceedings.

50. The members of the proposed classes are so numerous that joinder of all 

members is impracticable. Plaintiff reasonably believes that hundreds or thousands of people 

have been harmed by Defendants’ actions. The names and phone numbers of the numbers of 

the proposed class are readily identifiable through records available to Defendants.

51. Most members of the proposed class have suffered damages in an amount such 

that it would make filing separate lawsuits by individual members economically infeasible.

52. Upon information and belief, Defendants have called and continue to call

individuals who are registered on the National Do Not Call Registry. It is reasonable to expect 

that Defendants will continue to make such calls absent this lawsuit.

53. Common questions of law and fact exist as to all members of the proposed class 

and predominate over any questions affecting only individual members. The questions of law 

and fact common to the proposed class include, but are not limited to, whether Defendants

called phone numbers that were registered on the Do Not Call Registry and whether such calls 

violate the TCPA.

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54. Plaintiff’s claims are typical of the claims of the proposed class members

because their claims arise from the same practice that gives rise to the claims of the members of 

the proposed class and is based on the same legal theories.

55. Plaintiff and his counsel will fairly and adequately protect the interests of the 

members of the proposed class. Plaintiff’s interests do not conflict with the interests of the 

proposed class he seeks to represent. Plaintiff has retained lawyers who are competent and 

experienced in class action, TCPA litigation and consumer law. Plaintiff’s counsel has the 

resources to litigate this class action, and Plaintiff and counsel are aware of their responsibilities 

to the putative members of the class and will discharge those duties. Plaintiff reserves the right

to join other unnamed class members into this lawsuit.

56. A class action is superior to all individual lawsuits for this controversy. Joinder 

of all proposed members of the proposed class in one action is impracticable if not impossible 

and prosecuting hundreds or thousands of individual actions is not feasible. The size of the 

individual claims is likely not large enough to justify filing a separate action for each claim. 

For many, if not most, members of the proposed class, a class action is the only procedural 

mechanism that will allow recovery. Even if members of the proposed class had the resources 

to pursue individual litigation, that method would be unduly burdensome to the courts. 

Individual litigation could also result in inconsistent adjudications.

57. In contrast to numerous individual claims, a class action is superior in that it will 

benefit the court and litigating parties through efficiency, economy of scale and unitary 

adjudication resulting from supervision of the litigation by a single court.

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58. Questions of law and fact, particularly the propriety of calling cell phone 

numbers registered on the National Do Not Call Registry, predominate over questions affecting 

only individual members.

59. Defendants have acted or refused to act in accordance with the relief sought by 

these classes, so final injunctive relief or corresponding declaratory relief is appropriate with 

respect to the class as a whole.

COUNT I

DEFENDANTS VIOLATED THE TCPA 47 U.S.C. §227(b)

60. Plaintiff incorporates the forgoing paragraphs as though the same were set forth 

at length herein.

61. The TCPA prohibits placing calls using an automatic telephone dialing system or 

automatically generated or prerecorded voice to a cellular telephone except where the caller has 

the prior express consent of the called party to make such calls or where the call is made for 

emergency purposes. 47 U.S.C. § 227(b)(1)(A)(iii).

62. Upon information and belief, Defendant Benefytt initiated multiple calls to the 

telephone numbers of Plaintiff and the putative class members using an automatically generated 

or prerecorded voice on behalf of NCE.

63. Benefytt’s calls on behalf of NCE to Plaintiff and the putative class members

were not made for “emergency purposes.” 

64. Benefytt’s calls on behalf of NCE to Plaintiff and the putative class members

were without Plaintiff’s prior express consent.

65. Upon information and belief, Defendants placed prerecorded voice calls to 

hundreds if not thousands of telephone numbers.

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66. Defendants contacted Plaintiff and the putative class members despite the fact 

that their telephone numbers were on the Do Not Call Registry.

67. Defendants’ acts as described above were done with malicious, intentional,

willful, reckless, wanton and negligent disregard for Plaintiff’s rights or the rights of the 

putative class members under the law and with the purpose of harassing Plaintiff and Class 

members. 

68. As a result of the above violations of the TCPA, Plaintiff and the putative class 

members have suffered the losses and damages as set forth above entitling Plaintiff to an award 

of statutory, actual and trebles damages.

WHEREFORE Plaintiff Jonathan Avery, individually and on behalf of all others 

similarly situated, request the Court grant the following relief: 

a. Enter an order against Defendants, pursuant to Federal Rule of 

Civil Procedure 23, certifying this action as a class action and 

appointing Avery as the class representative; 

b. Enter an order appointing Kimmel & Silverman, P.C. as class 

counsel;

c. Enter judgment in favor of Plaintiff and the putative class for all 

damages available under the TCPA, including statutory damages 

of $500 per violation, or up to $1,500 per violation if Defendants

willfully violated section 227(b) of the TCPA;

d. Enter judgment in favor of Plaintiff and the class members 

enjoining Defendants from placing calls or leaving messages 

utilizing an automatically generated or pre-recorded voice; 

e. Award Plaintiff and the class all expenses of this action, and 

requiring defendant to pay the costs and expenses of class notice 

and claims administration; 

f. Award Plaintiff and the class members all reasonable costs of 

prosecuting the action, including court costs and investigation 

costs, deposition expenses, witness fees, and attorney’s fees; and

g. Award Plaintiff and the class members such further and other relief 

the Court deems just and appropriate.

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COUNT II

DEFENDANTS VIOLATED THE TCPA 47 U.S.C. §227(c)(5)

69. Plaintiff incorporates the forgoing paragraphs as though the same were set forth 

at length herein.

70. The TCPA provides that it is a violation of the law for a person whose phone 

number is registered on the National Do Not Call Registry to receive more than one call on their 

cell phone “within any 12-month period by or on behalf of the same entity.” See 47 U.S.C. §§ 

227(c)(1), (c)(5); 47 C.F.R. § 64.1200(c)(ii).

71. The penalty for each call placed in violation of the TCPA’s restrictions on 

calling cell phone numbers registered on the National Do Not Call Registry is $500 per call and 

up to $1,500 per call if the violation is determined to be willful. See 47 U.S.C. §§ 227(c)(5).

72. In addition, the TCPA allows the Court to enjoin Defendants’ violations of the 

TCPA’s regulations prohibiting calls to cell phone numbers registered on the National Do Not 

Call Registry. See 47 U.S.C. § 227(c)(5)(A).

73. Where Benefytt placed calls on behalf of NCE to the telephones of Plaintiff and 

the putative class members after their numbers were registered on the National Do Not Call 

Registry, Defendants violated the TCPA, including but not limited to, 47 U.S.C. § 227(c)(5) and

the TCPA’s corresponding regulations.

74. Defendants knew or should have known that Plaintiff and the putative class 

members had their numbers registered on the Do Not Call Registry.

75. Defendants did not obtain valid express written consent from the called parties.

76. Plaintiff and putative class members are entitled to damages of $500.00 per 

violation for each call and up to $1,500.00 per violation if the Court finds that Defendants 

willfully violated the TCPA.

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WHEREFORE Plaintiff Jonathan Avery, individually and on behalf of all others 

similarly situated, requests the Court grant the following relief: 

a. Enter an order against Defendants, pursuant to Federal Rule of 

Civil Procedure 23 et seq., certifying this action as a class action 

and appointing Plaintiff as the class representatives; 

b. Enter an order appointing Kimmel & Silverman as counsel for the 

class;

c. Enter judgment in favor of Plaintiff and the putative class for all 

damages available under the TCPA, including statutory damages 

of $500 per violation, or up to $1,500 per violation if Defendants

willfully violated section 227(c)(5) of the TCPA;

d. Enter a judgment in favor of Plaintiff and the putative class that 

enjoins Defendants from violating the TCPA’s regulations 

prohibiting Defendants from calling numbers registered on the 

National Do Not Call Registry;

e. Award Plaintiff and the class all expenses of this action, and 

requiring Defendants to pay the costs and expenses of class notice 

and administration; and

f. Award Plaintiff and the class such further and other relief the 

Court deems just and appropriate.

DEMAND FOR JURY TRIAL

PLEASE TAKE NOTICE that Plaintiff, JONATHAN AVERY, and all others similarly 

situated demand a jury trial in this case. 

 Respectfully submitted,

Dated: June 3, 2022 By: /s/ Jacob U. Ginsburg

 Jacob U. Ginsburg, Esq.

 Kimmel & Silverman, P.C.

 30 East Butler Ave.

 Ambler, PA 19002

 Phone: (215) 540-8888

 Facsimile: (877) 788-2864

 Email: jginsburg@creditlaw.com

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