The 9th Circuit U.S. Court of Appeals denied Porch.com’s Oct. 26 petition for rehearing (see 2211090025) by the panel or rehearing en banc of the court’s Oct. 12 opinion reversing a district court’s dismissal of a Telephone Consumer Protection Act class action on grounds that the plaintiffs lacked statutory standing because they were home improvement contractors, not consumers (see 2210130080), said an order Tuesday (docket 20-35962). The decision broadly allows anyone who owns a cellphone to sue under the TCPA, and “opens the floodgates to more TCPA litigation,” a statute “already plagued by abuse,” said Porch.com’s petition.
U.S. District Judge Kent Wetherell for Northern Florida in Pensacola signed an order Monday (docket 0:22-cv-02377) tolling the Dec. 2 deadline for Telephone Consumer Protection Act plaintiff Jordan Copeland to respond to Parler’s motion to dismiss until he rules on the motion to compel arbitration or the motion for a change of venue to U.S. District Court for Nevada. Wetherell’s instructions were “in the interest of judicial economy,” said his order. Parler engages “in aggressive telephonic sales calls to consumers without having secured prior express written consent” as required under the Florida Telephone Solicitation Act, and “with no regards for consumers' rights” under the TCPA, alleged Copeland in a Sept. 19 class action (see 2210240040)
Pro se plaintiff Chester Graham consented to the dismissal with prejudice of his Telephone Consumer Protection Act complaint against Comcast, said a form (docket 0:22-cv-02377) he signed Monday in U.S. District Court for Minnesota. The DOJ previously filed an acknowledgment of Comcast’s challenge to the TCPA’s constitutionality and signaled its intention to intervene in the case at the appropriate time as a result (see 2211080031). Comcast’s argument was that the TCPA’s 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.
U.S. District Judge Rodolfo Ruiz for Southern Florida in Fort Lauderdale signed an order Monday (docket 0:22-cv-61956) setting a jury trial for January 2024 in the Telephone Consumer Protection Act class action against Procter & Gamble (see 2211210013). Ruiz ordered the parties to choose a mediator by Dec. 12 and to complete class certification discovery by Feb. 21. Plaintiff Christa Simmons alleges P&G engaged in unsolicited text messaging to promote its Oral-B brand to consumers without prior express written consent, in violation of the TCPA and the Florida Telephone Solicitation Act.
Plaintiff Christa Simmons and defendant Procter & Gamble believe Simmons’ Telephone Consumer Protection Act class action against P&G is “a standard track case and that all discovery should be completed by August 17,” they said in a joint scheduling report Friday (docket 0:22-cv-61956) in U.S. District Court for Southern Florida in Fort Lauderdale. The parties “have not discussed settlement, but intend to work together in good faith to determine if a mutually agreeable settlement can be reached in this matter,” said the report. P&G engaged in unsolicited text messaging to promote its Oral-B brand to consumers without prior express written consent, said Simmons’ Oct. 20 complaint that also alleged Florida Telephone Solicitation Act violations (see 2210210057).
Plaintiff Christopher Atanasoff and defendant Wells Fargo Bank jointly moved for a 30-day extension to Dec. 23 for Wells Fargo to answer Atanasoff’s Nov. 1 complaint alleging it committed “knowing and/or willful” Telephone Consumer Protection Act violations (see 2211020055), said their motion Friday (docket 3:22-cv-01698) in U.S. District Court for Southern California in San Diego. Wells Fargo asked Atanasoff for the additional time, and he agreed, to investigate Atanasoff’s claims and to enable the parties “to engage in efforts to resolve this matter without further litigation, including early settlement discussions,” said their joint motion. Atanasoff alleges the bank phoned him more than 60 times to collect an old credit card debt after receiving a cease and desist from his lawyer on July 29.
Social media platform Parler used the same three-pronged defense in the second of two Telephone Consumer Protection Act lawsuits against it as it did in the first (see 2211180050). It filed separate and simultaneous motions (docket 3:22-cv-21243) to dismiss the class action by consumer Jordan Copeland in U.S. District Court for Northern Florida in Pensacola and to compel arbitration of the dispute. It also filed a third motion to transfer the case to U.S. District Court for Nevada in Las Vegas. The Pensacola lawsuit, like the one before it in Miami, also alleges that Parler violated the Florida Telephone Solicitation Act. “It was improper for Copeland to sue in Florida,” said Parler’s motion to dismiss. “Copeland agreed to a binding and mandatory arbitration agreement which must be enforced,” it said. “If for any reason the Court declines to enforce that arbitration agreement, Copeland nevertheless agreed to a forum selection clause requiring any disputes between him and Parler to be resolved in Nevada.” Even if Pensacola were the proper forum to adjudicate Copeland’s claims, “those claims must be dismissed,” said Parler. “As a threshold matter, Copeland fails to allege that he or any putative class member suffered a concrete harm or injury-in-fact which may be redressed by a judgment from this Court. Thus, Copeland lacks standing to pursue the claims asserted.”
Plaintiff Robert Doane seeks an order enforcing a subpoena against telemarketer PX stemming from a July 2021 Telephone Consumer Protection Act complaint against Vision Solar, an installer of solar panels, according to his petition Tuesday (docket 1:22-cv-09731) in U.S. District Court for Southern New York. “Vision Solar relies heavily, if not exclusively, on unlawful telemarketing to generate customers,” said the petition. In Vision Solar’s telemarketing campaigns, “it and its agent telemarketers have used, and continue to use, spoofed numbers and automatic dialing to make efficient, low cost, and illegal contacts” with potential customers, it said. During discovery in the TCPA complaint, Vision Solar identified PX as one of its telemarketing vendors, it said. Doane’s lawyers served a subpoena on PX in June, but got no response, it said. Discovery from PX is necessary “to determine the full extent of the relationship” between PX and Vision Solar, amid Doane’s “well-founded claims” about Vision Solar’s business practices, including its use of third-party telemarketers for soliciting customers while trying to avoid “statutory liability,” said the petition.
The U.S. District Court for Middle Florida in a Nov. 2 ruling held that a plaintiff didn't have standing to bring a class-action suit alleging a Telephone Consumer Protection Act violation, said a Shipkevich analysis Tuesday. The court recognized that the 11th Circuit U.S. Court of Appeals had previously held that the receipt of more than one unwanted telemarketing call made in violation of the TCPA constitutes sufficient standing for a plaintiff to bring suit, it said. But the court noted that such cases were decided before the Supreme Court case of TransUnion v. Ramirez, “which requires that each member of a purported class have standing in order to recover individual damages,” it said. The court ultimately found that in the Florida case, the allegations in the plaintiff’s complaint were “insufficient to show the plaintiff suffered concrete harm such that he had standing to allege a TCPA violation, and that the plaintiff further failed to allege facts sufficient to bring a class action suit,” it said.
Lawyers for Comcast Cable and Chester Graham, the consumer who is suing the company for alleged Telephone Consumer Protection Act violations, are to meet and confer telephonically by Thursday on a Rule 26(f) report that will be due Nov. 28, said an order signed Tuesday (docket 0:22-cv-02377) by U.S. Magistrate Judge Leo Brisbois for Minnesota. The Nov. 28 report should feature a joint proposed pretrial schedule for the case and a plan for discovery, including the number of depositions and documents expected to be produced, plus “the extent of expert discovery” that will be required, said the order. The case gained some notoriety last week when DOJ filed an acknowledgment of Comcast’s challenge to the TCPA’s constitutionality and signaled its intention to intervene in the case at the appropriate time as a result (see 2211080031). Comcast’s argument is that the TCPA’s 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.