LoanDepot seeks a deadline extension for a month to Dec. 19 to answer a complaint that it violated the Telephone Consumer Protection Act (see 2210250045), said its motion Thursday (docket 3:22-cv-00374) in U.S. District Court for Western Texas in El Paso. Plaintiff Mabel Arredondo served loanDepot with the summons and complaint Oct. 27, making the company’s response due Nov. 17, it said. Good cause exists for granting the extension due to “other pending matters which have been and are occupying counsel’s time, resources, and attention over the next week,” it said. Plaintiff Arredondo does not oppose the extension, it said.
Cedar Park, Texas, resident Brady Bennett has had his cellphone number listed on the do-not-call registry since November 2008, yet Charter Communications inundated him with “a multitude” of telemarketing robocalls, soliciting the sale of Spectrum cable, phone and internet services, in violation of the Telephone Consumer Protection Act, alleged his complaint Wednesday (docket 1:22-cv-01124) in U.S. District Court for Western Texas in Austin. Bennett wrote Charter’s legal department in October 2020 demanding that the calls cease and saying they were in violation of the TCPA, it said. Charter responded by denying it placed the calls, assuring Bennett that his number was added to its internal do-not-call list, but the calls nevertheless continued, it said. Charter “ostensibly” instructs its call-center vendors “not to unlawfully telemarket to consumers, while at the very same time providing financial incentives for those same resellers to telemarket Spectrum services,” it said. A Charter spokesperson declined comment.
The recent decision in U.S. District Court for Middle Tennessee in Nashville showed that a contract prohibiting Telephone Consumer Protection Act violations protected a seller when its telemarketing vendor allegedly ran afoul of the statute, said Manatt Phelps law firm in an analysis Tuesday. U.S. District Judge Aleta Trauger’s decision in the case, Black v. SunPath (docket 3:21-cv-00023), “serves as a reminder that contractual provisions with vendors prohibiting TCPA violations can provide important safeguards against a finding of vicarious liability,” it said. SunPath, a seller of vehicle extended service contracts, struck a call center marketing agreement (CCMA) with its vendor, Vehicle Activation Department (VAD), that required the vendor to operate in accordance with all FCC rules and regulations and to obey all state and federal statutes, said Manatt. SunPath moved for summary judgment, arguing it was not responsible for calls made by VAD, it said. Trauger agreed, granting the motion. “The CCMA unambiguously states that SunPath did not wish for VAD to violate the TCPA,” said her memorandum and order. “Permitting recovery against upstream sellers presents a possible way to stanch the demand for unlawful telemarketing, as an alternative to chasing one fly-by-night robocalling operation after another in an attempt to reduce the supply,” it said. “A policy argument for vicarious liability, however, is no substitute for establishing that such liability applies in this particular case.”
Ahren Tiller, with the BLC Law Center in San Diego, filed two virtually identical, consecutively numbered complaints Tuesday in U.S. District Court for Southern California on behalf of separate clients, both alleging Wells Fargo Bank violated the Telephone Consumer Protection Act by inundating credit card customers with debt collection calls using an automatic telephone dialing system and prerecorded or robotic voice. In the first action (docket 3:22-cv-01697), plaintiff Mario Vega alleges Wells Fargo continued to “willfully call” him more than 75 times after Tiller sent the bank a May 5 cease and desist letter revoking Vega’s prior consent to be contacted. In the second lawsuit (docket 3:22-cv-01698), plaintiff Christopher Atanasoff alleges the bank called him more than 60 times after Tiller sent the cease and desist letter July 29. Both complaints seek treble damages for “knowing and/or willful” TCPA violations. Wells Fargo didn’t comment Wednesday.
The 9th U.S. Circuit Court of Appeals decision Oct. 20 remanding to the district court a $925.22 million Telephone Consumer Protection Act judgment against ViSalus to determine if the large sum violated the company’s due process rights (see Ref:2210210069]) showed that “the reasonableness and proportionality of a punitive award are important,” said Venable in an analysis of the decision Wednesday. The court was “clear” that just because an aggregate TCPA award becomes “predominantly punitive does not render it constitutionally unsound,” it said. That the 9th Circuit held that an aggregated TCPA damages award could be unconstitutional “is surprising, to the say the least,” but it seems that such a high damages award “can cause even the typically plaintiff-friendly Ninth Circuit to pause,” it said. “It remains to be seen how much, if at all, the ViSalus award will be reduced, so avoiding such an award continues to be a party’s first priority,” said Venable: “An ounce of TCPA compliance counseling now might just save 925 million pounds of pain later.”
U.S. District Judge Roy Altman for Southern Florida in Miami scheduled a Nov. 7 video status conference in the class action in which Broward County consumer Catherine Migliano alleges Parler inundated her with telemarketing text messages promoting the sale of Donald Trump non-fungible tokens in violation of the Telephone Consumer Protection Act, said the judge’s order Wednesday (docket 0:22-cv-61805). Altman is giving attorneys the option of appearing in person or via Zoon, said the order. Migliano’s complaint was the first of two TCPA actions filed against the right-leaning social media platform in just over a month (see 2210240040). In the other TCPA complaint against Parler, U.S. District Judge Kent Wetherell for Northern Florida in Pensacola signed an order Thursday granting the platform's unopposed motion for a deadline extension to Nov. 18 to answer the suit by plaintiff Jordan Copeland.
Attorneys for Procter & Gamble and for plaintiff Christa Simmons are to confer and file a joint scheduling report by Nov. 18 in Simmons’ Oct. 23 Telephone Consumer Protection Act class action (see 2210210057), said an order (docket 0:22-cv-61956) signed Thursday by U.S. District Judge Rodolfo Ruiz for Southern Florida in Fort Lauderdale. Simmons’ complaint, also citing violations of the Florida Telephone Solicitation Act, alleges P&G engaged in unsolicited text messaging to promote its Oral-B brand without her prior express written consent.
Parler, the right-leaning social media platform, is seeking a three-week deadline extension to Nov. 18 to answer allegations it violated the Telephone Consumer Protection Act and Florida Telephone Solicitation Act (see 2210240040), said an unopposed motion Wednesday (docket 3:22-cv-21243) in U.S. District Court for Northern Florida in Pensacola. Plaintiff Jordan Copeland served his state court complaint on Parler on Sept. 23, and Parler removed the action to federal court in Pensacola on Oct. 21, said the motion. Parler only recently hired lawyers for the case and they need additional time to investigate the allegations and prepare a response, it said.
Hallmark, the largest U.S. manufacturer of greeting cards, operates “an aggressive telemarketing campaign where it repeatedly sends text messages” to phone numbers listed on the national do-not-call registry and “over the messaged party’s objections,” alleged Bridgeport, Connecticut, consumer James Williams in a class action Tuesday (docket 3:22-cv-01340) in U.S. District Court in New Haven that claimed Telephone Consumer Protection Act violations. Williams has no prior business relationship with Hallmark, and never gave Hallmark his phone number and or his consent to be contacted, it said. Despite his “unequivocal and repeated instructions” that the company stop all text messages, Hallmark continued to place text messages to his phone, it said. The company didn’t comment Wednesday.
The Florida Telephone Solicitation Act isn’t unconstitutional, a consumer plaintiff disagreed Monday with CPAP breathing mask maker AeroCare at U.S. District Court for Middle Florida (case 22-cv-1047). In a separate case on Florida’s mini Telephone Consumer Protection Act (TCPA) at the District Court for Southern Florida, a federal judge ruled Oct. 20 that Everglades College must answer a FTSA class action concerning education-related text messages (case 22-cv-22307). AeroCare sent texts asking Tyler DeSouza to order supplies for the breathing machine he no longer owned, even after DeSouza replied “stop” three times and AeroCare responded each time promising no more messages. AeroCare argues that FTSA is too vague, impermissibly restricts speech and violates the U.S. Constitution's dormant commerce clause. "While Defendant suggests 'telephonic sales call' is vague in all applications because the phrase 'soliciting a sale' is undefined, a legislature is 'not required to define each and every word in a piece of legislation to express clearly its will,'" said the plaintiff, citing the 11th U.S. Circuit Court of Appeals in 2021 case Catalyst Pharms v. Becerra. "Persons of common intelligence" can understand what soliciting a sale means, it added. FTSA includes no exceptions covering AeroCare's texts, DeSouza said. FTSA doesn’t unconstitutionally restrict speech, the plaintiff said: Intermediate scrutiny applies since the law restricts commercial speech and FTSA satisfies that standard because the government has substantial interest in restricting unwanted robocalls, “especially after the caller is asked to stop.” FTSA directly advances that interest and is appropriately tailored, DeSouza said. FTSA doesn't violate the dormant commerce clause because Congress authorized states to regulate telemarketing in the TCPA and FTSA doesn't regulate or unduly burden interstate commerce, the plaintiff said. In the Everglades College case, Judge Beth Bloom said the college didn't "provide persuasive authority for the proposition that the FTSA does not apply to educational services” and the court won’t "read that limitation into the statute.” FTSA didn’t specifically carve out education, and consumer protection laws should be construed liberally in consumers' favor, she said. The text messages sent by the college are actionable, Bloom said. "Whether Plaintiff consented or whether the communications sent by Defendant were in response to Plaintiff's inquiry are issues of fact that the Court does not consider at this juncture.” The college's consent language, to which defendant agreed, doesn't “include consent to receive telephonic sales calls,” she added.