Friel v. ETN America Inc. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH FRIEL,
individually and on behalf of a class
of all persons and entities similarly
situated,
Plaintiff
v.
ETN AMERICA INC. and SHLOMI
COHEN,
Defendants
No. 3:25cv882
(Judge Munley)
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MEMORANDUM ORDER
Defendant ETN America, Inc. ("ETN ") entered into a written agreement with
a third-party lead seller whereby ETN agreed to keep certain information
confidential. 	The agreement prohibits ETN from disclosing information except
"as may be required by ... order of a court[.]" 	Upon consideration of a motion to
compel filed by Plaintiff Joseph Friel in this litigation against ETN, ETN now has
that order of court to comply with its agreement with the third-party lead seller.
Defendants will be compelled to provide the identity of the lead seller to Friel for
the reasons set forth below.
Frie/'s Complaint - On May 19, 2025, Friel filed this putative class action
pursuant to the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227,
("TCPA"), against Defendants ETN and Shlomi Cohen ("Cohen") (Doc. 1). 	Friel's
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complaint seeks to represent a nationwide class of robocall recipients and a
class of recipients on the National Do Not Call Registry ("DNCR" ). kt
As alleged, ETN operates a website, contractors99.com. kt ,m 25-27. 	In
furtherance of that business, ETN placed pre-recorded telemarketing calls. kt
Friel alleges that he received five (5) telemarketing calls from ETN at his
personal residential telephone number, which is on the DNCR. kt ,I 30.
According to the complaint, Friel has never been a customer of ETN or Cohen .
kt,I31.
On May 13, 2025, "to identify the identity of the identity [sic) of the
individuals calling him illegally, and for no other reason," Friel engaged with the
telemarketing call. kt ,I 37. 	The call began with a prerecorded voice, possibly
using an Al-powered telephone agent or a Mechanical Turk worker, i. e. , a human
being powering what appears to be a machine-driven process. kt ,I 34. That
voice began asking recorded questions about home improvements and windows.
kt ,I 35. 	Friel 's complaint did not detail his answers, but eventually, he was
transferred to "a human being who was obviously human." kt
Afterward, Friel received text solicitations for window replacements and
home contractor services. kt ,I 38. 	He included screenshots of seven (7) text
messages to his iPhone device in the complaint. kt 	Some of the messages
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identify the sender as "Tom" or "Mike" from "Install America." 	Other messages
provide links to ETN 's contractors99.com website or to a toll-free number. kl
Friel filed this action six (6) days later. 	The complaint asserts two causes
of action against ETN and Cohen , one on behalf of a proposed Robocall Class
under 47 U.S.C. § 227(b) and one on behalf of a proposed DNCR Class under
47 U.S.C . § 227(c)(5). 	Friel also seeks to hold Defendant Cohen individually
liable under the TCPA, 47 U.S.C. § 217. 	Friel alleges that Cohen personally
participated in the violations by : "(a) selecting the script that was going to be
used on the calling ; (b) personally approving in the call center operations and (d)
[sic] personally authorizing any other telemarketing conduct of ETN America." kl
1l 23 .
Issues with a Conditional Settlement - 	On August 22 , 2025, counsel for
defendant advised that the parties had fully executed a "conditional settlement
agreement" and anticipated submitting a stipulation of dismissal within the next
90 days. (Doc. 18). 	The parties requested that the case be closed for
administrative purposes. 	Consequently, the court entered an order
administratively closing the case on August 25, 2025 and provided the parties
with 90 days to consummate the settlement. (Doc. 19).
Approximately 45 days later, on October 9, 2025, the parties submitted a
letter to the court advising that settlement would not be completed . (Doc. 20).
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That is, the parties advised that one of the conditions of settlement ostensibly
allowed Friel to make written discovery demands of the defendants. !fl
According to the letter, Friel had served an interrogatory seeking to learn the
identity of the lead seller that led to the five (5) telemarketing calls described in
plaintiff's complaint. 1 kl 	Defendants, citing a contractual confidentiality
agreement with the lead seller, objected to the request and refused to disclose
their identity. kl
The court reopened the matter on October 22 , 2025, (Doc. 21 ), and
directed defendants to file a response to the complaint, which they did on
October 29, 2025, (Doc. 22). The court conducted a case management
conference shortly thereafter. 	On December 31 , 2025, as part of the litigation ,
Friel filed a motion to compel disclosure of the lead seller's identity pursuant to
the Federal Rules of Civil Procedure. (Doc. 26).
The Present Litigab/e Dispute - 	Friel contends that the parties' conditional
settlement agreement provides for the dismissal of th is action against the
defendants following the completion of limited discovery. kl at 2. Additionally,
1 Prior to May 2025 , Friel had filed at least four (4) putative class actions in this federal district
court alleg i ng violations of the TCPA. See Friel v. North Star Ins. Advs ., LLC, No . 3:24cv481 ;
Friel v. Line 5, LLC , No. 3:24cv1866 ; Friel v. Selectquote Ins. Servs ., Inc., No. 3:25cv153 ; Friel
v. Gabriel A. Levy, P.C., No . 3:25cv502.
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per the motion to compel , the parties' agreed that Friel would serve one limited
discovery interrogatory requesting identification of the lead generation entity. kl
Whether the parties have conditionally resolved the matter or not, t he court has
directed litigation to move forward .
As for the present dispute, Friel's interrogatory provides:
INTERROGATORY NO. 1:
Identify the name, address, and contact information of the
person(s) or entity(ies) that provided the call lead resulting
in ETN 's alleged calls to Plaintiff.
(Doc. 27-2).
Defendants objected as follows:
OBJECTION TO INTERROGATORY NO. 1:
Defendants 	object to 	the 	Interrogatory 	on 	the 	basis 	of
confidentiality, 	including 	on 	the 	basis 	that 	a 	written
agreement between ETN America Inc. and the entity that
provided the lead resulting in ETN 's alleged calls to Plaintiff
provides in relevant part as follows :
6. Confidentiality.
a. "Confidential Information" means any information ,
data 	or 	know-how, 	whether 	in 	oral , 	written 	or
electronic 	form 	(including , 	without 	limitation , 	that
relating 	to 	developments, 	methods, 	inventions,
processes, 	technology, 	research , 	engineering ,
designs, 	intellectual 	property , 	business 	plans ,
operations, 	current 	or 	prospective 	customers 	or
suppliers, agreements with third parties , prices and
costs , marketing, budgets 	or finances) that (A) 	is
disclosed 	by 	the 	disclosi ng 	party 	or 	its
Representatives to, or that is otherwise learned by,
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Id.
the 	receiving 	party 	or 	its 	Representatives 	in 	the
course of discussions or business dealings with the
disclosing party, and (B) has been identified as being
proprietary and/or confidential or, by the nature of the
circumstances surrounding the disclosure or receipt,
reasonably ought to be treated as proprietary and/or
confidential. Confidential Information also includes,
but is 	not limited to , the terms of this Agreement.
Confidential 	Information 	does 	not 	include
information , data or know-how that (i) was legally
within the receiving party's knowledge or possession
prior to 	receipt from the disclosing 	party, (ii) 	is or
becomes generally known to the public other than by
a breach of this Agreement, (i ii ) is lawfully received
from a third party who did 	no t have confidentiality
obligations 	to 	the 	disclosing 	party 	with 	respect
thereto ; or (iv) is independently developed 	by the
receiving party without reference to or disclosure of
the Confidential Information of the disclosing party, in
each 	case 	as 	evidenced 	by 	t he 	receiving 	party's
records.
b. During the term of this Agreement and for two (2)
years 	thereafter, 	neither 	party 	shall 	disclose 	any
Confidential Information of the other party except: (i)
as expressly permitted by this Agreement; (ii) as may
be required by law, regulation , or order of a court or
government 	agency 	of 	competent 	jurisdiction
(provided 	such 	other 	party 	is 	given 	prior 	written
notice 	of 	such 	disclosure 	requirement 	and 	a
reasonable 	time 	to 	contest 	or 	prevent 	such
disclosure); 	or 	(iii) 	on 	a 	need-to-know 	basis 	to
Representatives who 	are 	bo u nd 	by 	obligations 	of
confidentiality protecting the Confidential Information
at least as stringent as those provided in this Section
6.
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During litigation, the Federal Rules of Civil Procedure contemplate the
ability of a plaintiff to "obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense and proportional to the needs of the
case[.]" FED . R. CIv. P. 26(b )(1 ). 	The proportionality requirement considers: "the
importance of the issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information , the parties' resources, the
importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit. " lil
Under the rules , Friel has the right to file a motion to compel where a party
fails to answer an interrogatory. FED. R. CIv. P. 37(a)(3)(B)(iii). 	"[A]n evasive or
incomplete disclosure, answer, or response must be treated as a failure to
disclose, answer, or respond. " FED. R. CIv. P. 37(a)(4). 	Since the action against
the defendants is pending in the Middle District of Pennsylvania, the court may
issue an order compelling disclosure by the defendants in response to Friel's
interrogatory. See Fed . R. Civ. P. FED . R. CIv. P. 37(a)(2).
The motion to compel can be resolved easily. 	Defendants responded by
indicating that they are parties to the above-referenced confidentiality agreement
with the lead seller and that they furnished a copy of the interrogatory and the
motion to the lead seller as part of their responsibilities under Paragraph 6
above. (Doc. 27). 	The court takes defendants' response as indicating, in
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essence, that defendants objected to the interrogatory to comply with the
agreement and not subject themselves to a separate lawsuit by the lead seller.
Consequently, because the identity of the lead seller is not privileged and is
relevant to Friel 's TCPA claims in this matter, it is hereby ORDERED that:
1) Plaintiff's motion to compel , (Doc. 26), is GRANTED;
2) Within seven (7) days, defendants shall provide a full and complete answer
to Plaintiff's Interrogatory# 1; and
3) Based upon the terms of the conditional settlement agreement, as
represented to the undersigned by the parties in this litigation, the Clerk of
Court is directed to close this case .
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