The parties in Carlos Delgadillo’s Jan. 7 class action against FCA US for the automaker’s alleged Telephone Consumer Protection Act violations (see 2401090001) anticipate 14 months will be required to complete discovery, after which plaintiff Delgadillo will move for class certification, said their joint case management report and discovery plan Monday (docket 2:24-cv-10039) in U.S. District Court for Eastern Michigan in Detroit. Delgadillo anticipates the disposition of his motion for class certification “will significantly impact the scope and timing of trial,” said the report. FCA, which does business as Stellantis North America, anticipates moving for summary judgment before class certification, it said. Delgadillo alleges that FCA violates the TCPA by making prerecorded voice calls to persons without consent, including after people requested that the calls stop, said the report. FCA responds that while it’s still investigating Delgadillo’s allegations, “the calls forming the basis of the claims appear to have pertained to an ongoing motor vehicle safety recall of airbag inflators that could rupture and launch metal fragments inside a vehicle,” it said. Those communications to Delgadillo thus constituted calls made for an “emergency purpose” that can’t support any claim under the TCPA, it said.

Block Equity Group sent Leon Weingrad telemarketing text messages Feb. 28 and March 28 in an attempt to sell him Small Business Administration-approved loans, alleged the Pennsylvania resident’s Telephone Consumer Protection Act class action Monday (docket 9:24-cv-02618) in U.S. District Court for Eastern New York. The complaint alleges Block violated the TCPA by sending telemarketing text messages to Weingrad and other putative class members whose numbers are listed on the national do not call registry, and that it did so without their written consent. The defendant also called people who had previously asked to no longer receive calls, said the complaint. Weingrad and the class have been harmed by the acts of Block because their privacy has been violated and they were annoyed and harassed, it said. The calls also occupied their phone lines, storage space and bandwidth, “rendering them unavailable for legitimate communication, including while driving, working, and performing other critical tasks,” it said.

Aflac seeks the dismissal in its entirety of Stewart Smith’s first amended Telephone Consumer Protection Act class action for failure to state a claim upon which relief can be granted (see 2403210004), said its motion Monday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia. Smith’s complaint alleges that in Aflac’s “overzealous attempt” to market its motor vehicle warranties, it willfully or knowingly made, and continues to make, unsolicited telemarketing phone calls to numbers listed on the national do not call registry (see 2402160002). But the claim in Smith’s amended complaint “arises from vague allegations of an unspecified number of calls” to his phone “made by unidentified individuals,” said Aflac’s memorandum of law in support of its motion to dismiss. Smith doesn’t allege that he received more than one call within a 12-month period, “as he must,” it said. He also doesn’t put forth “any specific facts in support of his conclusory assertion that Aflac itself or someone acting on Aflac’s behalf made the call,” it said. For example, he doesn’t identify the number that called him, describe how the caller identified himself or herself, detail what was said during the call, or provide any other facts “that could identify Aflac as the caller,” said the memorandum. Because Smith doesn’t allege sufficient facts to establish a TCPA claim, the court should dismiss his amended complaint with prejudice under Rule 12(b)(6), it said.

Priority Concepts inundated plaintiff James Shelton with at least 20 unwanted calls between Nov. 15 and Dec. 21 in an attempt to sell him employee retention credit tax preparation services and “anticipation loans,” alleged Shelton’s Telephone Consumer Protection Act class action Friday (docket 2:24-cv-02581) in U.S. District Court for Eastern New York in Central Islip. At no point did Shelton consent to receiving telemarketing calls from Priority before receiving the automated calls at issue, said the complaint. The Pennsylvania resident put his phone number on the national do not call registry in 2015, more than eight years before he began receiving the calls at issue, it said. The plaintiff has never been a Priority customer, and he “explicitly requested that the calls from Priority stop on multiple occasions,” including via a Dec. 8 email to the company, and on a phone call he received that same day, it said. The calls were unwanted, “nonconsensual encounters,” said the complaint. Shelton and the class have been harmed by Priority’s acts “because their privacy has been violated and they were annoyed and harassed,” it said. The calls also occupied their phone lines, storage space and bandwidth, “rendering them unavailable for legitimate communication, including while driving, working, and performing other critical tasks,” it said.

U.S. District Judge Michael Watson for Southern Ohio in Columbus overruled the objections of defendant Vivek Ramaswamy to a magistrate judge’s order granting plaintiff Thomas Grant’s motion for limited expedited discovery in his Telephone Consumer Protection Act class action against the former Republican presidential candidate (see 2404050013), said Watson’s signed opinion and order Friday (docket 2:24-cv-00281). Grant sought the discovery to preserve relevant records of calls that Ramaswamy’s campaign made to him and his putative class members to solicit their participation in his telephonic town halls. Ramaswamy had asked the court to set aside the order as “clearly erroneous and contrary to law.” But the magistrate judge rightly found there was good cause for granting the discovery motion, said the opinion and order. Though this isn’t a case involving patent infringement or unfair competition, “all the other factors” favor plaintiff Grant, it said. He persuasively argues that there’s a risk that evidence will be lost, it said. Grant’s counsel "represents" that in other TCPA cases, some of the companies that make calls on behalf of others have policies to destroy call logs within a few months, it said. "Of course, that does not prove the evidence in this case will be lost," but Grant "has presented a sufficient basis for concluding that there is a risk that the evidence will be lost," it said. That's "enough for this factor to favor allowing early discovery," it said. Ramaswamy also would suffer “little prejudice” from discovery, it said. The only thing he has to do is give Grant the name of the dialer that the campaign used, it said. The scope of the requested discovery is narrow, it said. Indeed, the plaintiff asks only for the identity of the dialer and for permission to subpoena call logs from the dialer. The request is limited to only what he needs to preserve the call transmission logs, and that factor also “supports allowing early discovery,” it said. On Ramaswamy’s argument that the magistrate judge erred by ruling on a discovery dispute before resolving his jurisdictional challenge, that argument fails because the court has subject-matter jurisdiction over the case, said the opinion and order. On the former candidate's objections to the magistrate judge allowing Grant to serve a third party with a subpoena, Ramaswamy “lacks standing to raise this objection,” it said. He offers no argument that he has “any claim of privilege to the information sought by the subpoena,” it said.

Plaintiff-appellant Jacob Howard’s case against the Republican National Committee “hinges on a legal theory that is as novel as it is untenable,” said the RNC’s answering brief Saturday (docket 23-3826) in the 9th U.S. Circuit Appeals Court. Howard alleges that a text message containing a video constitutes an artificial or prerecorded voice call under the Telephone Consumer Protection Act, said the RNC. But the district court recognized the “absurdity” of Howard’s claims “and rightly dismissed them,” it said. U.S. District Judge Steven Logan for Arizona in Phoenix held that the text messages weren’t actionable under the TCPA because the downloaded videos didn’t automatically begin playing (see 2402080021). The messages therefore “provided a conscious choice of whether to engage with the audible component” of the downloaded video, but that was different “from what the TCPA intended” by barring calls using a prerecorded voice, said his order. Though the TCPA protects Americans’ right to privacy, it doesn’t “impose liability for every telephone communication that a recipient dislikes,” said the RNC’s answering brief. “Nor does the TCPA permit curtailment of political speech -- even when that speech comes in the form of a text message,” it said. The TCPA also exempts political communications and certain communications from nonprofit organizations from its prohibitions, it said. Both exemptions “plainly apply here,” it said. Howard’s complaint “pleaded him out of his TCPA claim,” it said. The district court “thus properly dismissed his case,” it said. On appeal, Howard “now challenges every facet of this decision by raising any fleeting legal theory he can conjure,” it said. These theories “are uniformly without merit,” it said. The 9th Circuit should affirm, it said.

Plaintiff Cindy Luchinske and defendant Apptness Media Group stipulate to the dismissal with prejudice of Luchinske’s Telephone Consumer Protection Act class action claims, with each party to bear its own attorneys’ fees and costs, said their stipulated motion Wednesday (docket 2:23-cv-00267) in U.S. District Court for Eastern Washington in Spokane. Luchinske’s putative class claims are dismissed without prejudice, said the motion. Luchinske’s complaint alleged that Apptness “bombards unsuspecting consumers” nationally “with annoying automated texts." She alleged that Apptness’ campaigns are an effort to collect consumers’ names, addresses, emails, phone numbers and other personal contact information so it can sell “that same information to other companies."

Robert Doane filed suit Thursday in U.S. District Court for Massachusetts in Boston to halt an alleged scheme to generate solar energy leads through widespread illegal telemarketing activities, in violation of the Telephone Consumer Protection Act and the Massachusetts Consumer Protection Act. Defendants Solar Xchange and its owner, Mark Getts, “illegally placed tens of millions of calls to consumer phone numbers listed on the national do not call registry without the consumers’ prior express written consent, alleged the Wakefield, Massachusetts, resident’s complaint (docket 1:24-cv-10868). Solar Xchange and Getts are the same parties that agreed in July to pay the federal government and Arizona $62,000 of a $13.9 million suspended civil penalty to settle allegations they violated the FTC Act, the Telemarketing Sales Rule and Arizona’s Consumer Fraud Act and Telephone Solicitations Act (see 2307210008). In many instances, Solar Xchange, at the direction of Getts, “falsely told consumers that it was affiliated with a government program or electric utility company,” said the complaint. It falsely told consumers that Solar Xchange was required to call the consumer due to a state mandate, or falsely indicated that Solar Xchange was working in partnership with the consumer’s local utility company, it said. Solar Xchange also made “various false or unsubstantiated representations about how consumers can save money on their electric bills by installing solar panels on their homes with no money down,” it said. It also misrepresented that consumers’ monthly payments for solar panels would replace their current electric bills at a fixed rate up to 30% lower, it said. In many instances, consumers who received telemarketing calls from Solar Xchange requested that the company stop calling, yet the calls continued, it said. Solar Xchange also “often made rude or harassing comments to consumers who asked not to be called,” it said. Doane’s complaint alleges that Solar Xchange made thousands of calls “that repeatedly or continuously caused consumers’ phones to ring.” He alleges that Solar Xchange “called at least 150,000 different phone numbers over 50 times and called at least 12,000 phone numbers over 100 times.” Many of these consumers “received multiple calls almost every day for one or more months,” with some consumers regularly receiving five or more calls daily, said the complaint. Solar Xchange’s contract with Five9, one of its telephone service providers, required Solar Xchange to comply with all federal, state and local laws, including its compliance with the national DNC registry, it said. Defendant Getts also corresponded directly with Five9 about Solar Xchange’s obligations and its compliance, it said. Solar Xchange submitted some, but not all, the phone numbers in its possession to third-party services for “scrubbing” against various DNC registries, “to make it appear that Solar Xchange was attentive to compliance when it was not,” it said. The complaint estimates Solar Xchange placed roughly half its calls to numbers on the national DNC registry between August 2021 and June 2022.

Plaintiff Heather Lee Minor and defendant Apollo Interactive have entered into a written settlement agreement providing for the filing of a stipulation of dismissal of the case by April 24, said their joint status report Thursday (docket 4:23-cv-00355) in U.S. District Court for Northern Florida in Tallahassee. Minor’s Telephone Consumer Protection Act Aug. 10 class action alleged that Apollo Interactive, an advertising agency that provides lead generation services to businesses in the insurance industry, inundates U.S. consumers with unsolicited texts through a program called Apollo Alerts, to numbers listed on the national do not call registry (see 2308110002).

Allstate engages in widespread unsolicited telemarketing to promote the sale of its insurance products, and violates the Telephone Consumer Protection Act as it does so, alleged plaintiff Thomas Doughty’s complaint Thursday (docket 1:24-cv-00356) in U.S. District Court for Western Texas in Austin. Allstate engages insurance agents across the country to conduct that telemarketing on its behalf, “and authorizes those insurance agents to place telemarketing calls on Allstate’s behalf and subject to Allstate’s control,” said the complaint. Those include prerecorded telemarketing calls and calls to numbers listed on the national do not call list, it said. When an Allstate insurance agent sells an Allstate insurance policy as a result of illegal telemarketing calls and a premium is collected on that policy, both Allstate and the agent receive portions of that premium, it said. Allstate “knowingly accepted the benefits of the illegal telemarketing calls, both in the form of advertising benefits that Allstate obtained during the calls themselves and in collection of premium payments resulting from any sales made from those calls,” it said. “This is not the first lawsuit against Allstate alleging TCPA violations” that arise from calls placed by Allstate’ agents, said the complaint. “Accordingly, Allstate has been on notice since at least 2019" that its agents are violating the TCPA on Allstate’s behalf, yet Allstate “has allowed the violations to continue,” it said. Court records show that 30 TCPA complaints have been filed against Allstate since October 2015.