Cindy Luchinske reached a settlement with the Apptness Media Group over her Telephone Consumer Protection Act claims, said her notice Friday (docket 2:23-cv-00267) in U.S. District Court for Eastern Washington in Spokane. The parties hope to file a stipulation of dismissal within 45 days, it said. Americans receive billions of spam text messages every year, and Luchinske’s Sept. 13 class action alleged that Apptness, a compendium of digital marketers, “is a major participant in this spam” (see 2309140004).

Kohl’s started placing “incessant” debt collections calls to Melissa Gray’s cellphone in January 2023 after she fell behind in her monthly credit card payments and her account “fell into a delinquent status,” alleged Gray’s Telephone Consumer Protection Act class action Thursday (docket 1:24-cv-00327) in U.S. District Court for Western Texas in Austin. In February this year, “fed up with the invasive robocalls,” Gray answered one of the calls and requested that the calls cease, but the calls nevertheless continued, said the complaint. The plaintiff estimates that Kohl’s placed no fewer than 30 robocalls to her cellphone after she asked that the calls stop, it said. The calls invaded her privacy and caused her damages, including the “aggravation that accompanies unwanted phone calls,” it said.

Weiharik Garcia received at least two automated text messages March 19 from South Shore Hyundai, a dealership in Valley Stream, New York, soliciting her to buy, sell or trade in a car, in “plain violation” of the Telephone Consumer Protection Act, alleged her class action Thursday (docket 2:24-cv-01305) in U.S. District Court for Eastern Pennsylvania in Philadelphia. The “hexadecimal codes” associated with the text messages indicate that they were sent using an automatic telephone dialing system, which randomly generates phone numbers by itself, “and also uses a prerecorded, artificial voice to generate message content,” it said. South Shore “had no earthly clue who it was sending automated messages to” because the Pennsylvania resident doesn’t drive and isn’t named May, the person to whom the messages were addressed, said the complaint. Further supporting the fact that a random or sequential telephone number generator was used to produce the phone number to text, South Shore sent its text messages to 484-area code numbers in southeast Pennsylvania, despite the dealership being located in New York, “which is quite the hike for anyone to go there from Philly,” it said. The unwanted text messages were “non-consensual encounters,” it said. Garcia and members of the class have been harmed by South Shore’s acts “because their privacy has been violated and they were annoyed and harassed,” it said.

LoanDepot denies “each and every allegation” in Lee Abrahamian’s July 24 amended Telephone Consumer Protection Act class action, said its answer Wednesday (docket 2:23-cv-00728) in U.S. District Court for Arizona in Phoenix. Abrahamian alleges he listed his cellphone number with the national do not call registry in October 2007, yet loanDepot phoned him repeatedly without his consent, encouraging him to purchase a home equity loan. But the plaintiff lacks Article III standing to bring his action and to represent any purported class because he didn’t suffer an injury-in-fact as a result of loanDepot’s alleged conduct, said its answer. The imposition of statutory damages under the TCPA against the company would violate the Constitution's due process provisions, it said. Abrahamian’s lawsuit isn’t maintainable as a class action because the proposed classes don’t satisfy the requirements for class certification under Federal Rule of Civil Procedure 23, it said. The damages the plaintiff seeks on behalf of the purported class can’t be recovered “without specific proof by each purported class member that he or she has been injured,” it said. LoanDepot didn’t willfully or knowingly contact Abrahamian on the phone number at issue without prior express consent, said its answer. To the extent that there was any violation of the TCPA, which loanDepot denies, the company shall be liable for no more than a $500 penalty, as it “denies that it willfully and knowingly violated the TCPA,” it said.

Erica Cardenas seeks injunctive relief and statutory damages to stop debt relief company Creditors Relief from violating the Telephone Consumer Protection Act by sending unsolicited text messages to phone numbers that are listed on the national do not call registry, said her class action Tuesday (docket 2:24-cv-04214) in U.S. District Court for New Jersey in Newark. A resident of Chula Vista, California, Cardenas listed her number on the national DNC registry Nov. 9, yet she received at least six text messages from Creditors Relief beginning Jan. 15 promoting its debt relief services, the class action said. Creditors Relief “specifically lists cold calling as a job requirement in its job listings,” it added. Former Creditors Relief employees “have posted complaints about the poor quality of leads they were given to call,” it said. Consumers also have posted complaints on the Better Business Bureau website about the unsolicited calls and text messages they received from Creditors Relief, it said. Moreover, the plaintiff has never done business with the company or consented to be called, said her class action. The unauthorized solicitation text messages that Cardenas received from Creditors Relief or on its behalf have harmed her “in the form of annoyance, nuisance, and invasion of privacy,” it said. The text messages have “occupied her phone line, and disturbed the use and enjoyment of her phone,” it said.

Rather than challenge the “legal sufficiency” of Ben Davis’ allegations that CR Fitness violated the Telephone Consumer Protection Act by placing an “unconsented, prerecorded” telemarketing call to Davis’ cellphone (see 2310140001), CR Fitness instead challenges subject-matter jurisdiction under Rule 12(b)(1), said Davis’ memorandum of law Tuesday (docket 8:23-cv-02333) in U.S. District Court for Middle Florida in Tampa in opposition to CR Fitness’ motion to dismiss. CR Fitness argues that Davis lacks standing because it never made the “violative” call, but its contention that there’s no evidence CR Fitness contacted Davis is “categorically incorrect,” said the memorandum. Included in Davis’ complaint is a screenshot of the voicemail log demonstrating that he received the call on the date, time and from the number alleged, plus a transcript of the prerecorded message from his voicemail that identifies CR Fitness as the caller, it said. Despite the fact that the case is still very much in the pleading stage, Davis produced to CR Fitness an audio recording of the prerecorded phone message, a screenshot of the call log from his phone, and a video of him opening his phone and playing the voicemail message, it said. The notion that the court lacks subject-matter jurisdiction to adjudicate the dispute because the challenged conduct isn’t “fairly traceable” to CR Fitness is “unavailing,” said the memorandum. The defendant wants the court to ignore the evidence of the call because “it does not fit its narrative, and instead take its word that it could not possibly have made the call” to Davis, it said. The factual evidence establishes that Davis was injured by CR Fitness’ “unconsented, prerecorded call and that there is subject matter jurisdiction,” it said.

Applebee’s engages in unsolicited text messaging and continues contacting consumers after they have opted out of its solicitations, alleged plaintiff Melissa Garzon’s Telephone Consumer Protection Act class action Monday (docket 8:24-cv-00738) in U.S. District Court for Middle Florida in Tampa. Applebee’s sent multiple text messages to Garzon’s cellphone, though her number was listed on the national do not call registry since August 2017, said the Hillsborough County, Florida, resident's class action. The complaint bears screenshots of at least a dozen such text-message solicitations, advertising $13.99 “holiday combos” and other promotional offers. In addition, Applebee’s fails to honor consumer requests to opt out of text message solicitations, said the complaint. That failure demonstrates that the company lacks written policies and procedures for its text messaging marketing, nor does it provide proper training to telemarketing personnel, it said. Applebee’s also doesn’t maintain an internal, stand-alone DNC list, it said.

The U.S. District Court for Arizona in Phoenix should deny Rocket Mortgage’s motion to compel Darren MacDonald’s Telephone Consumer Protection Act claims to arbitration “for the same reason other district courts across the country have denied substantively similar motions by Rocket,” said the plaintiff's response in opposition Friday (docket 2:23-cv-02558). That’s because notice of the website terms containing the arbitration agreement that Rocket seeks to enforce wasn’t “reasonably conspicuous” on the website that Rocket claims MacDonald visited, it said. Drawing all reasonable inferences in MacDonald’s favor, “the only reasonable conclusion” to be drawn from Rocket’s website “is that it was designed to obscure the notice constituting users’ agreement to the terms containing the arbitration agreement,” it said. MacDonald alleges that Rocket places unsolicited calls and sends unsolicited text messages to consumers without their consent, including to numbers listed on the national do not call registry (see 2312120001). He further alleges that company employees have listed cold calling as a core part of the job description in their LinkedIn profiles. Rocket filed concurrent motions last month to dismiss MacDonald’s Dec. 11 TCPA class action and to compel his claims to arbitration (see 2402120008).

Wayfair engages in unsolicited text messaging to promote goods and services, and sends text messages after consumers have opted out of such solicitations, alleged plaintiff Ty Stricker’s Telephone Consumer Protection Act class action Friday (docket 2:24-cv-10740) in U.S. District Court for Eastern Michigan in Detroit. Stricker asked Wayfair Feb. 5 to stop contacting him, yet Wayfair continued sending text messages between Feb. 10 and March 15 to a cellphone number that Stricker listed on the national do not call registry in November 2005, said the complaint. Wayfair’s failure to honor opt-out requests demonstrates it doesn’t maintain written policies and procedures for text messaging marketing, that it doesn’t provide proper training for telemarketing personnel and lacks an internal, standalone DNC list, it said. Wayfair’s “text message spam” caused Stricker and class members harm, “including violations of their statutory rights, trespass, annoyance, nuisance, invasion of their privacy, and intrusion upon seclusion,” the complaint said.

Plymouth Rock’s Feb. 16 counterclaim alleging that Telephone Consumer Protection Act plaintiff Robert Clough violates the New Jersey Insurance Fraud Prevention Act (see 2402200001) “is nothing more than a contrived attempt to intimidate and bully a consumer for daring to hold it to account for illegal telemarketing,” said Clough’s motion to dismiss the counterclaim Friday (docket 2:21-cv-19343) in U.S. District Court for New Jersey in Newark. Plymouth’s counterclaim alleges Clough runs a “cottage industry” of filing “sham” TCPA lawsuits against insurance companies, of which the class action against Plymouth is only the latest. But the counterclaim “is frivolous on its face” and the court should dismiss it with prejudice, said Clough’s motion. The company is suing Clough for insurance fraud, even though he “has never submitted an insurance claim to Plymouth, never applied for benefits, never been a Plymouth customer, never applied for an insurance policy from Plymouth, and never initiated any communication to Plymouth whatsoever,” said the motion. The "sole basis" for Plymouth’s counterclaim is that when the company’s telemarketer placed an illegal unsolicited call to Clough in August 2021, he answered the call "and played along with the telemarketer’s bogus script so that the telemarketer would divulge who was calling and why, staying on the line long enough to obtain an insurance quote, even though he wasn’t really interested in obtaining an insurance policy," said the plaintiff's motion. Plymouth doesn't claim to have ever received any false information from Clough, "let alone to have ever relied upon it to its detriment or otherwise," it said.