Plaintiff Courtney Hill’s Oct. 10 opposition (see 2310110042) “fails to rebut” InvestorPlace Media’s showing that her first amended Telephone Consumer Protection Act complaint should be dismissed with prejudice, said InvestorPlace’s reply Tuesday (docket 5:23-cv-00111) in U.S. District Court for Western North Carolina in Statesville in support of its motion to dismiss. Hill’s complaint fails to state a claim because it doesn’t plead facts “sufficient to plausibly allege” that the text messages she allegedly received constitute “telemarketing” within the meaning of the “governing regulation,” it said. Hill doesn’t dispute that the texts she allegedly received don’t “on their face contain any content” that’s designed to promote the purchase or rental of goods or services, “as is required to state a claim under the relevant rule,” said the reply. Rather than arguing that the text messages themselves constitute telemarketing, Hill takes the position that any message directing the recipient to any portion of a business’ website constitutes telemarketing, “so long as that business sells goods or services somewhere on its website,” it said. But alleging InvestorPlace provided links to informational content on its website isn’t sufficient to plausibly allege the messages were sent for telemarketing purposes, it said. Multiple courts have rejected “such an expansive reading of the regulation,” and “for good reason,” it said.
Tranzact, a seller of burial insurance, is waging a campaign to market its services through a third-party, temporarily called John Doe Corp., that makes telemarketing calls to numbers on the national do not call registry, in “plain violation” of the Telephone Consumer Protection Act, alleged Virginia Cole’s class action Tuesday (docket 3:23-cv-01083) in U.S. District Court for Middle Tennessee in Nashville. Indicative of its “en masse calling,” the company used spoofed local caller ID numbers, it said. Tranzact was previously targeted in complaints and lawsuits for contacting numbers in violation of the TCPA, or hiring others to do so on its behalf, it said. Cole and all members of her class have been harmed by the unlawful conduct “because their privacy has been violated and they were annoyed and harassed,” it said. The FCC said sellers such as Tranzact may not avoid vicarious TCPA liability “by outsourcing telemarketing to third parties,” it said.
Safeway seeks to compel the Telephone Consumer Protection Act claim of class-action plaintiff Ashley Ehrmantraut to arbitration, said its motion Monday (docket 2:23-cv-01739) in U.S. District Court for Arizona in Phoenix. Ehrmantraut alleges Safeway promotes its goods and services by using unsolicited text-messaging, and it continues to text-message consumers after they opt out of those solicitations (see 2308230003). Ehrmantraut asserts a single-count TCPA claim on behalf of herself and a putative class, but the parties’ arbitration agreement requires her to pursue her claim “in an individual arbitration and bars her from pursuing this class action in court,” said Safeway’s motion to compel. Ehrmantraut enrolled in Safeway’s loyalty program through grocery retailer's mobile app in March, said the motion. In so doing, she provided Safeway with her mobile phone number and “affirmatively accepted” its terms of use, which includes the mandatory arbitration provision, it said.
CR Fitness, the largest franchisee of Crunch Fitness gyms, with more than 40 clubs in Florida, Georgia, North Carolina and Texas, embarked on an aggressive marketing campaign to sell club memberships that includes placing unsolicited, prerecorded telemarketing robocalls to consumers, in violation of the Telephone Consumer Protection Act, alleged plaintiff Ben Davis’ class action Friday (docket 8:23-cv-02333) in U.S. District Court for Middle Florida in Tampa. CR Fitness called Davis’ cellphone without his consent, and even though his number was listed on the national do not call registry since December 2011, it said. Upon information and “good faith belief,” CR Fitness maintains or has access to “outbound transmission reports for all robocalls sent for advertising and promoting its services and goods,” it said. Those reports “show the dates, times, target telephone numbers and content of each message” sent to Davis and his potential class members, it said. The Collin County, Texas, resident believes CR Fitness “engages in mass robocalling nationwide without any consent from the recipients of its calls,” it said. The calls caused Davis and the potential class members harm, “including liquidated damages, inconvenience, invasion of privacy, aggravation, annoyance and violation of their statutory privacy rights,” it said.
New York Tribeca Group (NYTG), a commercial loan company, “uses automated systems to send outbound telephonic sales calls, including text messages, to hundreds if not thousands of consumers across the U.S.,” alleged plaintiff Dana Ehde’s Telephone Consumer Protection Act class action Thursday (docket 1:23-cv-07636) in U.S. District Court for Eastern New York in Brooklyn. The consumers who receive NYTG’s calls include many whose phone numbers are listed on the national do not call registry, said the complaint. NYTG made sales calls or caused them to be made using “spoofed phone numbers” that weren’t capable of receiving calls or connecting the original call recipient to NYTG, it said. Other consumers posted complaints online about receiving NYTG’s unsolicited sales calls and text messages, as did “multiple” NYTG employees, said the complaint. The NYTG employees who posted online reviews about the company’s telemarketing practices attested that NYTG provided them with consumer leads for “cold calling,” it said. NYTG continues to place unsolicited calls and text messages even after consumers demanded they stop, it said. Plaintiff Ehde of Chalfont, Pennsylvania, began receiving NYTG’s unsolicited calls to her phone in mid-2021 offering “business capital loans,” it said. All the calls and texts were directed toward a party named Andy, who Ehde doesn’t know but believes was the previous owner of her cellphone number, it said. The calls and texts persisted, despite Ehde’s clear opt-out requests, it said. The unauthorized sales calls and text messages harmed Ehde “in the form of annoyance, nuisance, and invasion of privacy, and disturbed the use and enjoyment of her phone,” it said. Court records show Ehde’s lawsuit is the fourth TCPA action filed against NYTG since Nov. 18.
Plaintiff Paul Sapan and defendant Diamond Resorts reached a “private settlement of the material issues” in their Telephone Consumer Protection Act dispute, said Sapan’s notice of settlement Thursday (docket 8:23-cv-00147) in U.S. District Court for Central California in Santa Ana. The parties plan to file a joint motion to dismiss the entire case with prejudice by Jan. 15, because the terms of the settlement “require an undertaking in the first week of January,” said the notice. Sapan alleged in his Jan. 23 class action that Diamond engages in a scheme to sell timeshares via “cold calls” to residential phone numbers listed on the national do not call registry, in violation of the TCPA (see 2301240064). Relations between the parties appeared recently to grow exceptionally strained when, in an Aug. 30 joint stipulation, Diamond accused Sapan of being one of the “most prolific TCPA litigants in the country,” while Sapan depicted himself as a “TCPA Robin Hood” who sues "junk callers" like Diamond for their illegal calls, “then gives his portion of the recovery to charity” (see 2308310039).
San Diego County resident Eli Olivares received at least nine “live calls” from William Brothers Building & Construction on his residential cellphone to “pitch” home remodeling services, though his number was listed on the national do not call registry since 2015, he alleged in his Telephone Consumer Protection Act complaint Wednesday (docket 3:23-cv-01858) in U.S. District Court for Southern California in San Diego. Olivares’ cellphone number “is purely personal and residential and is not used in any way shape or form to operate any business entity or concern,” said his complaint. Each of the calls complained of was initiated using an automated telephone dialing system, “which used a random or sequential number generator to determine the order in which to pick phone numbers from a preproduced list,” it said. Olivares traced the calls to an entity called the California Design Center, with which he had never done any business and had never given any consent for the calls, it said. Olivares alleges he was harmed by the “junk calls” through “the direct waste of his time during the calls themselves,” plus the “indirect waste of time” in having to “break from other important tasks and spend time catching up after these junk calls,” said his complaint. The calls forced him to pay the costs “of having to pursue legal remedies,” it said. He also suffered injury “in the aggravation and consequent health effects of stress these illegal intrusions have caused,” it said.
U.S. Magistrate Judge Ryon McCabe for Southern Florida in West Palm Beach scheduled an Oct. 19 hearing at 2 p.m. EDT via videoconference on defendant loanDepot’s motions to dismiss plaintiff Zachary Sawicki’s Telephone Consumer Protection Act second amended class action and to strike Sawicki’s class allegations, said the judge’s paperless order Wednesday (docket 2:22-cv-14425). U.S. District Judge Aileen Cannon referred the motions to McCabe Tuesday for a report and recommendation (see 2310110037). LoanDepot is seeking dismissal of the “abandoned call” count in Sawicki’s complaint. Under the TCPA, a call is deemed abandoned if it’s not connected to a live sales representative within two seconds of the called person’s completed greeting.
Harley-Davidson Credit Corp. committed Telephone Consumer Protection Act wrongdoing that was “knowing and intentional,” and it didn’t maintain procedures “reasonably adapted to avoid any such violation,” alleged plaintiff Steven Lowe’s complaint Tuesday (docket 2:23-cv-08521) in U.S. District Court for Central California in Los Angeles. Lowe “expressly told” the company June 17 to stop calling his cellphone, said his complaint. But the calls didn’t stop, “and sometimes occurred three times in one day, and sometimes early in the morning,” it said. The Long Beach County, California, resident estimates the company called his cellphone more than 120 times since the calls began in November, it said. Nearly 10 pages of Lowe’s 22-page complaint are devoted to a line-by-line breakdown of the numerous calls he received. Lowe alleges the calls were made to a cellphone number that was listed on the national do not call registry since June 2019. Through Harley-Davidson’s conduct, Lowe “suffered an invasion of a legally protected interest in privacy, which is specifically addressed and protected by the TCPA,” said his complaint.
Vivek 2024, the presidential campaign committee of Republican Vivek Ramaswamy, seeks to stay Phillip Woods’ Telephone Consumer Protection Act case and transfer the proceedings to a different Arizona district judge, Steven Logan, said the committee’s motion Tuesday (docket 2:23-cv-01958). Woods doesn’t oppose the motion, said the committee. The TCPA case that Logan is presiding over, Howard v. Republican National Committee (docket 2:23-cv-00993), “calls for determination of substantially the same questions of the law” as in the Woods case, said the motion. Both cases concern the same provisions of the TCPA, specifically deciding if a text message that includes a video file falls within the TCPA’s definition of an artificial or prerecorded voice call, it said. Both cases also involve political defendants, albeit different organizations, and both are represented by the same counsel from the law firm Holtzman Vogel, it said. The parties in Howard have fully briefed arguments for a pending motion to dismiss (see 2308250005), said the motion. “Keeping the two cases pending before different judges could potentially lead to conflicting judgments and substantial duplication of judicial resources as two different judges potentially draft opinions surrounding the same legal question,” it said.