Defendant telehealth company LifeMD's answer to plaintiff Shannan Davis’ Sept. 21 Telephone Consumer Protection Act class action was due Oct. 27, “yet no answer has been filed,” said a text order Tuesday (docket 8:23-cv-02138) from U.S. District Judge Virginia Hernandez Covington for Middle Florida in Tampa. Plaintiff Davis hasn’t yet applied for the entry of a clerk's default against LifeMD, but the court urges her to do so “promptly,” said the order. Davis alleges that LifeMD contributed to the national “barrage” of phone spam by initiating and sending more than 100 illegal text messages to her residential cellphone (see 2309220001).
U.S. District Judge Matthew Brann for Middle Pennsylvania in Williamsport denied Integrity Vehicle Group’s motion to dismiss a Telephone Consumer Protection Act suit brought by plaintiff Zach Fridline, said his signed order Tuesday (docket 4:23-cv-01194). Fridline alleged telemarketing agent Vanguard placed several calls to Fridline but didn’t allege Integrity made any calls, Integrity argued in its September motion to dismiss (see 2309190059), but Fridline maintains Vanguard and Integrity entered into a contract requiring Vanguard to promote Integrity products on telemarketing calls to generate new customers, and Integrity then accepted business originating through Vanguard’s telemarketing calls. Fridline “plausibly alleges that Integrity contracted with Vanguard to call potential customers on its behalf,” said Brann's memorandum opinion Tuesday. He received a call from Vanguard soliciting Integrity’s services, and he received mail from Vanguard containing Integrity’s contract, said Brann. “On a motion to dismiss, that is enough.” If in discovery it is revealed that Integrity “had no such power under its contract with Vanguard, then judgment may be entered in favor of Integrity at that time,” he said. Integrity’s answer to the amended complaint is due no later than 14 days from the Tuesday order.
Unwanted telemarketing calls are “intrusive,” said plaintiff George Moore’s Telephone Consumer Protection Act class action Monday (docket 1:23-cv-15444) in U.S. District Court for Northern Illinois in Chicago against Blue Nile, which bills itself as the world’s largest online jeweler. “A great many people object to these calls, which interfere with their lives, tie up their phone lines, and cause confusion and disruption on phone records,” said Moore’s complaint. The Illinois resident’s cellphone number was listed on the national do not call registry for years before he began receiving Blue Nile’s text-message solicitations May 24, it said. The solicitations began after Moore visited a Blue Nile store, but he never gave the jeweler his consent to receive the texts, it said. The text messages persisted, despite the plaintiff’s multiple “stop” requests, and Blue Nile’s acknowledgments of those requests, it said. “Upon information and belief, Blue Nile sends marketing text messages to, minimally, all persons who visit any of its stores, regardless of whether such an individual has requested to no longer receive text messages,” said Moore’s class action. The jeweler “had the ability to immediately honor” Moore’s do not call requests, “as it used an automated system to send the text messages,” it said. Indeed, when the plaintiff contacted the jeweler to demand that the text messages stop, Blue Nile “apologized and acknowledged that his telephone number should have been removed from text message marketing,” it said. The complaint seeks injunctive relief prohibiting the jeweler from sending future calls or text messages soliciting the purchase of its goods or services to any residential number on the national do not call registry. It also seeks statutory damages of $500 for each TCPA violation, plus $1,500 for each knowing or willful violation.
Kohl’s denies that it violated the Telephone Consumer Protection Act, the Rosenthal Fair Debt Collection Practices Actor or any other “statute, law or common law claim,” based on the allegations in plaintiff Brandi Taylor’s Aug. 31 complaint (see 2309010001), said the retailer's answer Monday (docket 2:23-cv-01874) in U.S. District Court for Eastern California in Sacramento. Taylor alleges that Kohl’s inundated her with at least 30 “systematic” debt collection calls using a prerecorded or artificial voice. But Taylor “expressly or impliedly consented to and approved all of the acts and omissions” about which she now complains when she agreed to the terms of her Kohl’s charge card account in March 2022, said Kohl's answer. Taylor’s claims against the company are barred because the TCPA doesn’t permit her “to revoke consent after, as part of a bargained-for-exchange, she agreed to be contacted” when she applied for her Kohl’s charge card, it said. The company alleges that the damages Taylor seeks violate the Constitution’s due process clause and constitute excessive fines in violation of the Eighth Amendment, it said. Granting Taylor’s demand for damages “would result in unjust enrichment,” it said. Taylor hasn’t alleged that she suffered “any particularized and concrete injury, whether tangible or intangible," as a result of any contact Kohl’s made in connection with Taylor’s Kohl’s charge account, it said. Court records show Kohl’s has been sued nearly 70 times for alleged TCPA wrongdoing since May 2011. The retailer has repeatedly asserted affirmative defenses on constitutional grounds in many of those actions (see 2310060009).
When North Carolina resident James Coleman began receiving prerecorded phone calls from Walgreens without his consent, he immediately requested that they stop and that he be added to Walgreens’ internal do not call list, but the calls nevertheless continued, alleged his Telephone Consumer Protection Act class action Friday (docket 1:23-cv-15376) in U.S. District Court for Northern Illinois in Chicago. Coleman’s cellphone isn’t associated with a business and is used for personal purposes, and his number has been listed on the national do no call registry since February 2005, said his complaint. He estimates receiving at least eight “automated” Walgreens calls between April 19 and July 6, it said. The calls persisted even after Coleman spoke with different Walgreens agents on three occasions asking that the calls stop, it said. Walgreens records phone conversations that take place over Walgreens’ “inbound customer support lines,” it said. The audio recordings will show that Coleman requested numerous times that he be placed on Walgreens’ DNC list, and that Walgreens’ representatives responded that Walgreens would honor the request, it said. Either Walgreens added Coleman to its internal DNC list but continued to call him anyway, or it failed to “properly implement” its internal DNC list “as required by the TCPA’s regulations,” it said. Coleman is entitled to $1,500 per call if Walgreens’ wrongful actions are found to be knowing or willful, it said. He has suffered concrete harm because of Walgreens’ unwanted and unsolicited calls, and his “forms of actual injury are sufficient for Article III standing purposes,” it said.
Regent University “denies any violations, liability, damages or wrongdoing” under the Telephone Consumer Protection Act, said its answer Friday (docket 2:23-cv-00480) in U.S. District Court for Eastern Virginia in Norfolk to plaintiff Maxx Lyman’s Sept. 27 class action. Lyman alleges that Regent “routinely violates” the TCPA by using an artificial or prerecorded voice to place nonemergency telemarketing calls to cellphone numbers, without recipients’ prior express consent and often to wrong or reassigned numbers (see 2309280003). “To the extent that any violations are established, which is denied, any such violations were not intentional,” said Regent’s answer. Regent has established and implemented “reasonable practices and procedures to effectively prevent a violation of the TCPA,” it said. To the extent that Lyman wasn’t the intended recipient of the alleged calls, Lyman “has no standing” to assert the TCPA claims, it said. Regent asserts it had consent to call the number, said its answer.
Plaintiff Gabriel Nater seeks an injunction requiring State Farm to cease all unsolicited artificial and prerecorded voice phone calls, plus an award of statutory damages, court costs and attorneys’ fees for the insurance company’s repeated Telephone Consumer Protection Act violations, said his TCPA class action Friday (docket 1:23-cv-01408) in U.S. District Court for Central Illinois in Peoria. In State Farm’s “overzealous attempt to market its services,” it knowingly and willfully made, and continues to make, unsolicited telemarketing phone calls using an artificial or prerecorded voice without the prior express written consent of the call recipients, it said. Through this “method,” State Farm has invaded the Tennessee resident’s “personal privacy” and that of members of his putative class, it said. State Farm “has intentionally and repeatedly violated the TCPA, and will continue to do so” in violation of Nater’s and the class members’ rights, “absent judicial relief and legal redress,” it said. Court records show that Nater’s complaint is the eighth TCPA action filed against State Farm since March 2013.
UnitedHealthcare “denies any implication” that it violated the Telephone Consumer Protection Act, said the insurer’s answer Wednesday (docket 5:23-cv-00522) in U.S. District Court for Middle Florida in Ocala to plaintiff Elaine Johnson’s Oct. 11 amended class action. Johnson alleges UHC “routinely violates” the TCPA by using an artificial or prerecorded voice to place nonemergency calls to cellphone numbers without their recipients’ prior express consent. But Johnson and members of her putative class “have suffered no injury, or only a de minimis injury,” and thus don’t have standing to assert claims against UHC, said its answer. UHC isn’t liable to Johnson because it acted “reasonably and with due care and substantially complied with all applicable statutes,” it said. Her TCPA claims are barred to the extent that UHC “had a good-faith basis to believe that it had consent” to contact her phone number, it said. Any UHC actions taken that allegedly were made in violation of the TCPA “were neither knowing nor willful,” it said.
U.S. District Judge Steven Logan for Arizona in Phoenix granted Telephone Consumer Protection Act defendant Vivek 2024's Oct. 10 motion to transfer its case to him for consolidation with another case, Howard v. Republican National Committee (docket 2:23-cv-00993), the judge already was presiding over (see 2310110029), said the judge's signed order Thursday (docket 2:23-cv-01958). Vivik 2024 is Republican Vivek Ramaswamy's presidential campaign committee. Phillip Woods, the plaintiff in Woods v. Vivek 2024, didn’t oppose the motion. The Woods case “calls for substantially the same question of law” as Howard, said Logan’s order. That question is whether a prerecorded video, sent via text message, is actionable as a “prerecorded voice” under the TCPA’s Section 227(b), it said. “Both cases involve plaintiffs who received unwanted text messages” that included videos with prerecorded audio clips, it said. Whether those messages are actionable under the TCPA “is a matter of law that will be dispositive in determining whether the respective plaintiffs have successfully stated a claim” under Section 227(b), it said. The plaintiff in Woods also has retained the same counsel as the plaintiff’s counsel in Howard, “and many of the same arguments have been made during briefing,” said Logan’s order. Transferring the case “will also eliminate substantial duplication of labor” between Logan’s court and the transferring court, it said. “Transfer is appropriate here,” it said.
Boca Raton, Florida-based Kawa Orthodontics filed a Telephone Consumer Protection Act suit Thursday to challenge the practice of four Northwell Health subsidiaries of sending unsolicited fax advertisements promoting their lab services to unhappy recipients, said Kawa’s class action (docket 9:23-cv-81424) in U.S. District Court for Southern Florida in West Palm Beach. Kawa alleges receiving a single Northwell fax ad Sept. 18 but asserts the fax it received “is a generic advertising template suitable for mass transmission to numerous recipients.” On that basis, Kawa alleges that the defendants, or persons or entities acting on their behalf, violated the TCPA by sending the same fax ad to members of the proposed class, it said. Because the TCPA’s Section 227(b)(3) creates a private right of action for those to whom unsolicited fax advertisements are sent, “the statutory rights conferred by the TCPA are violated upon the sending of the unsolicited fax advertisement regardless of whether the fax is ultimately reviewed by an actual person,” it said. The unsolicited fax ads violate Kawa’s and class members’ “right to privacy and interest in seclusion,” plus they’re a nuisance and they “interfere with interstate commerce,” alleged the class action. The unsolicited fax ads also cause harm in that they “occupy fax lines, prevent fax machines from receiving authorized faxes and prevent their use for authorized outgoing faxes,” it said. They also cause “undue wear and tear on the recipients’ fax machines,” and require “additional labor and effort to attempt to discern the source and purpose of the unsolicited message,” it said. The action seeks relief “expressly authorized by the TCPA,” including an award of statutory damages of at least $500 for each TCPA violation, “and to have such damages trebled,” under the TCPA’s Section 227(b)(3), “in the event willfulness in violating the TCPA is shown.”