U.S. District Judge Wilhelmina Wright for Minnesota in St. Paul signed an order Wednesday (docket 0:22-cv-02377) dismissing with prejudice plaintiff Chester Graham’s Telephone Consumer Protection Act class action against Comcast. Graham consented to the dismissal Nov. 21 (see 2211220003). The case gained some brief notoriety when Comcast challenged the TCPA’s constitutionality on grounds that its statutory damages provisions violate the safeguards guaranteed in the Fifth, Sixth, Eighth and 14th amendments because they enable excessive fines that are grossly disproportionate to any actual harm that TCPA plaintiffs may suffer (see 2211080031).
Gannett violates the Telephone Consumer Protection Act by authorizing telemarketing calls without consent to consumers who registered their phone numbers on the do-not-call registry or who were called despite asking for the calls to stop, alleged a class action Wednesday (docket 2:22-cv-01464) in U.S. District Court for Eastern Wisconsin in Milwaukee. Gannett outsources its customer service and customer retention programs to a vendor, A Marketing Resource (AMR), for the unlawful calls to plaintiff Jean Zoulek, a Hubertus, Wisconsin, consumer, and the putative class, said the complaint. “Gannett provides lists of consumer phone numbers to AMR, including those that have subscribed to their publications in the past, for the sake of telemarketing their subscription services to them,” it said. Gannett pays AMR for each subscription renewal it generates, it said. “Numerous consumers have posted complaints online about calls they received from AMR, including complaints from consumers who received unsolicited calls after telling AMR employees to stop calling,” said the complaint. The FCC “has instructed that corporations such as Gannett may not avoid liability by having their telemarketing outsourced,” it said. Zoulek’s class action seeks injunctive relief and statutory damages. Neither Gannett nor AMR commented Thursday.
Kohl’s needs a 30-day deadline extension to Jan. 6 to answer plaintiff Mary Graehl’s complaint alleging the retailer violated the Telephone Consumer Protection Act, said its unopposed motion Tuesday (docket 2:22-cv-01341) in U.S. District Court for Eastern Wisconsin in Milwaukee. Graehl’s complaint, the second TCPA action against Kohl’s in as many months, alleges Kohl's inundated her with “harassing” debt-collection phone calls, causing her “concrete harm” as a result.
Spectrum Cable “routinely violates” the Telephone Consumer Protection Act “by using an artificial or prerecorded voice in connection with nonemergency calls it places” to phone numbers assigned to a cellular service, and does so “without prior express consent,” alleged a class action Tuesday (docket 5:22-cv-01304) in U.S. District Court for Western Texas. Spectrum began placing calls to San Antonio resident Irene Talamantez in January, “intending to discuss an account other than one” in her name, said the complaint. Spectrum placed “dozens of calls” to Talamantez, even though she “does not have, nor did she have,” a Spectrum account, it said. The calls continued even after Talamantez told Spectrum to stop, it said. The company didn’t respond to requests for comment.
A three-judge panel at the 9th Circuit U.S. Court of Appeals voted to deny the Nov. 23 motion of defendant-appellee Porch.com to stay the 9th Circuit’s Oct. 12 mandate reversing a lower court’s dismissal of a Telephone Consumer Protection Act class action. Judges William Fletcher and Daniel Bress voted to deny the motion, and Judge Sandra Ikuta voted to grant it, said their order Tuesday (docket 20-35962). Porch.com sought the stay to allow for filing a petition for writ of certiorari to the Supreme Court. In reversing the lower court’s dismissal, the 9th Circuit ruled cellphones are “preemptively residential” even when used for both personal and business purposes, and that businesses are “entities” under the TCPA, giving them standing to sue over TCPA violations (see 2210130080).
U.S. District Judge John Kness for Northern Illinois in Chicago instructed plaintiff Thomas Gebka to consider amending his Telephone Consumer Protection Act complaint against State Farm, now that State Farm has filed a motion to dismiss the case (see 2212050027), said a minute entry Monday (docket 1:22-cv-05546). The court’s standing order on motions to dismiss gives the nonmoving party the right to amend its pleading once within 21 days, said Kness. If Gebka opts to amend his pleading, State Farm will have 21 days to file either an answer or a renewed motion to dismiss, he said. If Gebka instead chooses to litigate the motion to dismiss, he must file his response within 28 days, and State Farm must file its reply within 14 days, he said. In his response, Gebka “must also address whether any alleged deficiencies identified by the motion to dismiss are curable by amendment,” said the judge.
The 9th Circuit U.S. Court of Appeals, in its Nov. 16 decision in Borden v. eFinancial (docket 21-35746), “embraced the holding” of the Supreme Court in its Facebook v. Duguid 2021 ruling, narrowly interpreting the meaning of an automatic telephone dialing system under the Telephone Consumer Protection Act, “and did not rely on an arguable ambiguity in Facebook to avoid its implications,” said Sheppard Mullin in a Nov. 20 analysis. Consumer David Borden sued eFinancial in a putative TCPA class action, alleging eFinancial used a “sequential number generator” to pick the order in which to call consumers who had provided their phone numbers, Sheppard Mullin said. Borden claimed eFinancial’s equipment generated a sequential string of numbers, which were then stored and assigned to a customer’s telephone number. Borden said a footnote in the Supreme Court’s Facebook decision supported his position when it said an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. The district court dismissed his case, ruling eFinancial didn't use an ATDS. On appeal, the 9th Circuit affirmed, saying an ATDS must randomly or sequentially generate telephone numbers, not just any number as Borden argued. “The ongoing litigation over the meaning of ATDS demonstrates that companies should still do what they can to ensure they are obtaining prior express consent before making auto-dialed calls or text messages,” said the law firm.
Plaintiff Thomas Gebka “fails to allege any facts to support any vicarious liability theory that could hold State Farm liable” for calls made to his phone in violation of the Telephone Consumer Protection Act, said State Farm’s memorandum of law Friday (docket 1:22-cv-05546) in support of its motion to dismiss Gebka’s Oct. 10 class action (see 2210110009). Gebka “now brings two causes of action against State Farm under the TCPA, despite having pursued some of the same calls in a TCPA lawsuit against Allstate,” it said. Gebka "sustained no injury from calls he invited and therefore lacks standing with regard to those calls,” said State Farm. He invited the calls he received from the independent contractor agents working for State Farm “when he provided the lead generator with his name, email address, zip code, and make and model of his automobile and therefore must have expected to receive insurance quotes,” it said.
Attorneys for plaintiff Jamil Hindi and defendant furniture chain Modani are to file a joint scheduling report within 35 days of Modani’s “first responsive pleading” in Hindi’s Telephone Consumer Protection Act class action (see 2211280035), said an order signed Thursday (docket 0:22-cv-62219) by U.S. District Judge William Dimitrouleas for Southern Florida in Fort Lauderdale. They must confer within 15 days of Modani’s first responsive pleading “to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case,” the order said. Hindi’s class action alleges Modani inundated Floridians with 50 different unwanted text-message solicitations since July 1, including a November bombardment keyed to Black Friday promotions.
U.S. District Judge Robert Chatigny for Connecticut in New Haven entered an electronic order Thursday (docket 3:22-cv-01340) granting Hallmark Cards’ consent motion for an extension to Jan. 18 to answer the Oct. 25 class action claiming it violated the Telephone Consumer Protection Act (see 2210260054). Bridgeport consumer James Williams contends in his complaint that Hallmark operates an aggressive telemarketing campaign in which it repeatedly sends text messages to phone numbers listed on the national do-not-call registry.