Core Home Security contends that it had prior express consent of Victoria Starr-Harris and her putative class members to receive Core’ solicitations on their cellphones, said the security installation and monitoring company’s answer Wednesday (docket 0:24-cv-60250) in U.S. District Court for Southern Florida in Fort Lauderdale to Starr-Harris’ Feb. 14 Telephone Consumer Protection Act class action (see 2402140062). That such consent “was never validly revoked,” said Core. As a matter of “business practice,” Core and its agents “only make sales calls to prospective customers who have provided prior express written consent,” said its answer. The plaintiff and her putative class members “failed to revoke that consent at any time,” it said. It contends that a Core agent named Cory phoned Starr-Harris on her cellphone, and specifically asked her: "Do we have permission to call you here, if we needed to?" She responded: "Correct, correct," according to the company. A recording of that phone call has already been produced to Starr-Harris, said its answer. Core “rigorously and in good faith” complies with all applicable state, federal and local laws and regulations concerning its calling activities, said its answer. Its business practices and procedures, including opt-in mechanisms, “have been independently audited for TCPA compliance,” and those practices and procedures “have been found to be in compliance with the TCPA and applicable regulations,” it said. Maintaining Starr-Harris’ claims as a class action “is inconsistent with the legislative intent of the TCPA,” said Core. Congress intended that claims under the TCPA proceed as individual actions, it said. The TCPA’s legislative history “supports a conclusion that class actions were not intended,” it said. Congress envisioned the statute “as providing a private right of action to consumers receiving the specifically prohibited communications,” it said. In holding that a class action couldn’t proceed under the TCPA, one federal district court “determined that the statutory remedy is designed to provide adequate incentive for an individual plaintiff to bring suit on his own behalf,” it said.

Sibcy Cline real estate brokerage sent James Chams a series of unsolicited text messages beginning New Year’s Day, offering to list his Mason, Ohio, house though his cellphone number was listed on the national do not call registry since October 2022 and he wasn't interested in selling his property, alleged Chams' Telephone Consumer Protection Act class action Tuesday (docket 1:24-cv-00123) in U.S. District Court for Southern Ohio in Cincinnati. Chams has never advertised his cellphone number online or used it for business purposes, said his complaint. The plaintiff also has never done business with Sibcy Cline and has never given the brokerage his consent to call or text his phone number, it said. He phoned the brokerage to inquire why it sent him multiple unsolicited text messages when he wasn’t looking to sell his property. Gayatri Chandran, a Sibcy Cline sales vice president, told him she received his contact information from a real estate lead generation company, Connekter, which indicated she should get in touch with Chams to offer her assistance in listing his property for sale, said the complaint. Chams told Chandran that he made no such inquiry to Connekter and that he wasn’t interested in listing his property for sale, it said. Chams “was very upset about this invasion of his privacy,” it said. The unauthorized solicitation text messages that Chams received from Sibcy Cline have harmed him “in the form of annoyance, nuisance, and invasion of privacy,” it said. The text messages also have occupied his phone line, and have disturbed the use and enjoyment of his phone, it said.

Capital One made debt collection calls to Deborah Duncan using an artificial or prerecorded voice, in violation of the Telephone Consumer Protection Act and California’s Rosenthal Fair Debt Collection Practices Act (RFDCPA), alleged Duncan’s complaint Monday (docket 3:24-cv-00474) in U.S. District Court for Southern California in San Diego. The TCPA was designed to prevent calls like those described in Duncan’s complaint, and to protect the privacy of citizens like her, it said. The California legislature determined that unfair or deceptive collection practices “undermine the public confidence which is essential to the continued functioning of the banking and credit system,” said the complaint. The legislature further determined that there’s “a need to ensure that debt collectors and debtors exercise their responsibilities to one another with fairness, honesty, and due regard for the rights of others,” it said. Its “explicit purpose” in enacting the RFDCPA “was to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts and to require debtors to act fairly in entering into and honoring such debts,” it said. Duncan “maintained good standing” on her two Capital One credit card accounts until August, when she fell into financial hardship and was unable to maintain the regular monthly payments, said the complaint. After Duncan went into default on her accounts, agents for Capital One called her cellphone incessantly, using a prerecorded voice, it said. The San Diego County resident received as many as two calls a day from Capital One, “sometimes every day,” it said. Duncan received more than 96 calls from Capital One even after her attorney sent the company a letter Nov. 10 that “clearly revoked” any prior consent to contact the plaintiff via the use of an automated dialing system, text or other method, including calls with prerecorded or automated voice messages, it said. Duncan received at least two calls in a single day, and often more than seven calls in a given week, “based on her recollection of the frequency of calls,” plus the records of calls “that she has in her possession,” it said. Court records show that Duncan’s complaint is the 81st TCPA action filed against Capital One since February 2012.

U.S. District Judge Kenneth Bell for Western North Carolina in Statesville denied InvestorPlace Media’s Sept. 27 motion to dismiss plaintiff Courtney Hill’s amended Telephone Consumer Protection Act complaint, said Bell’s signed order Monday (docket 5:23-cv-00111). Hill alleges that InvestorPlace, a financial research firm, violated the TCPA by sending her telemarketing text messages without her consent (see 2309280016). But InvestorPlace’s motion to dismiss contended that the text messages Hill allegedly received bore “no resemblance” to telemarketing, as the FCC has defined it. Hill alleges that most of the text messages she received contained a link that directs the viewer to a specific page of InvestorPlace’s website hosting a briefing or article. The rest simply urged the recipient to visit the InvestorPlace’s website for more details. Hill’s amended complaint doesn’t describe “with specificity” the web pages linked to the text messages she received, said the judge’s order. While the court finds that Hill has met her “limited burden” to plead a plausible TCPA claim, she “will of course be required to establish in discovery that the linked web pages reflect the commercial activity sufficient to satisfy the statutory definition of telemarketing,” it said. Hill can plausibly allege InvestorPlace’s text messages “meet the regulatory definition of telemarketing if their purpose was to promote a commercial transaction with the company,” it said. Though the text portion of the communications “may not directly encourage” Hill to purchase any services, her allegations assert that the embedded links “plausibly tell a different, more mercantile story,” it said. Hill has plausibly alleged that the text messages offering investment advice were a “pitch” meant to draw recipients to InvestorPlace’s website “where they presumably would be encouraged to purchase a subscription,” said the order. The court accordingly finds the text messages don’t merely provide informational content, “but instead plausibly direct the recipient to specific websites that provide free investment advice as a part of an effort to market the purchase of a subscription from InvestorPlace,” it said.

Plaintiff Chun Wu and National Tax Advisory Services agree to the dismissal without prejudice of all of Wu’s Telephone Consumer Protection Act claims against the tax debt relief company (see 2303160054), said their stipulation Monday (docket 1:23-cv-00679) in U.S. District Court for Colorado in Denver. The parties will bear their own attorneys’ fees and costs, said the stipulation. Wu’s March 2023 class action alleged that the company inundates thousands of consumers with artificial or prerecorded voice messages promoting its services, and that it does so without obtaining their prior express written consent. The case gained some brief notoriety last spring when the defendant’s motion to dismiss called the TCPA “the poster child for lawsuit abuse” (see 2305010009).

The arguments in Apptness Media Group’s Jan. 22 motion to compel Cindy Luchinske’s Telephone Consumer Protection Act claims to arbitration (see 2401240052) are “without merit” and the motion should be denied, said her response in opposition Friday (docket 2:23-cv-00267) in U.S. District Court for Eastern Washington in Spokane. The case presents “a straightforward contract issue,” said the opposition. In asking whether Apptness has proven the existence of a valid and enforceable arbitration agreement between itself and Luchinske, the answer “is a resounding no,” it said. There’s no “meeting of the minds here because there has never been any meeting at all,” it said. The plaintiff has never had any relationship with Apptness, it said. She never visited the websites on which its motion hinges, it said. She didn’t provide false and inaccurate personal information on those sites, and she never made any agreements with Apptness. “In the face of those truths,” all that Apptness can, and “very dubiously,” claim” in its motion is that some unknown user submitted Luchinske’s information, including her phone number, to various websites owned by Apptness or by nonparty C4R Media, it said. But most of that information is “flat wrong,” and the anonymous user wasn’t Luchinske, it said. Against that backdrop, and because the court must give Luchinske “the benefit of all reasonable doubts and inferences” that may arise on the motion, Apptness has “failed entirely” to satisfy its substantial burden to establish the existence of a valid and enforceable arbitration agreement, it said.

Pia Ginder filed a class action Friday in U.S. District Court for Middle Florida in Orlando to stop a campaign by Tax Prep Advocates to market Form 1099 tax credit services for the self-employed through the use of prerecorded telemarketing calls to consumers in violation of the Telephone Consumer Protection Act. Ginder also alleges that Tax Prep Advocates uses automated systems that transmit prerecorded messages to make telemarketing calls into Florida, and that by doing so, it has also violated the Florida Telephone Solicitation Act, said her complaint (docket 6:24-cv-00479). At no point has Ginder consented to receive telemarketing calls regarding Tax Prep Advocates’ services before receiving those calls, it said. The Florida resident’s cellphone number has been listed on the national do not call registry since July 2006, yet she received at least one telemarketing call from Tax Prep Advocates on Feb. 19, said her complaint. The prerecorded call directed her to the company's affiliated website, Your1099Refund.com, it said. Ginder and members of her class have been harmed by Tax Prep Advocates’ conduct “because their privacy has been violated and they were annoyed and harassed,” it said. They were also harmed by the intrusion on their phones that prevented them from receiving “legitimate communications,” it said.

Arthur Cochran is “entitled to the records necessary” to argue that Boost Health Insurance “purposely availed itself of the privilege of conducting business in Florida and is subject to personal jurisdiction” there, said Cochran’s reply Thursday (docket 4:23-cv-00473) in U.S. District Court for Northern Florida in Tallahassee in support of his motion to compel discovery (see 2402230043). Boost Health knew and agreed that as part of its joint venture with vendor Work Business Solutions (WBS), the vendor “would make telemarketing calls into Florida to consumers with Florida numbers,” including plaintiff Cochran, said the reply. Boost Health’s opposition concedes that the key issue for the court’s determination about whether personal jurisdiction exists over Boost Health “is whether WBS acted as an agent for Boost,” it said. Cochran alleges that Boost Health determined what leads WBS could purchase and call, and required WBS to send it the call recipient’s contact information as part of any call that was transferred. To identify the “extent” of that illegal “calling conduct,” Cochran seeks discovery “of how many calls Boost Health received that it knew were made into Florida as part of its joint venture with WBS,” said the plaintiff’s reply.

David Almeida filed a class action against Localize City, a real estate acquisition platform that supports real estate agents by using AI technology to convert leads into sales, to "enforce the consumer privacy provisions afforded" by the Telephone Consumer Protection Act, said his complaint Thursday (docket 1:24-cv-01948) in U.S. District Court for Northern Illinois in Chicago. Localize sent unsolicited text messages promoting its real estate listings to the Cook County resident and the putative class members using an automatic telephone dialing system, alleges the complaint. Almeida’s phone number has been listed on the national do not call registry since December 2022, so the text messages Localize sent him were in “clear violation” of the TCPA, it said. Localize’s website says the company believes in the “transformative and limitless potential” of AI built for real estate, said the complaint. By leveraging “deep technologies,” says the website, Localize empowers real estate agents, teams and brokers “to amplify their reach beyond human capabilities and create new opportunities.” Almeida alleges receiving “the first of many automated, unsolicited and unconsented text messages” on Feb. 13 from the same phone number belonging to Localize. The text messages Localize sent the plaintiff “consisted of pre-written templates” that it would have sent to "thousands" of other consumers, said the complaint. Upon information and good faith belief, the language in the messages “were automatically generated and inputted into pre-written text templates without any actual human intervention in the drafting or sending of the messages,” it said. Almeida never provided Localize with express written consent authorizing it to transmit text messages to his cellphone number, it said. The text messages caused Almeida and the class members harm, “including liquidated damages, inconvenience, invasion of privacy, aggravation, annoyance, and violation of their statutory privacy rights,” it said.

Corporate officers can’t be held liable for alleged violations of the Telephone Consumer Protection Act, said defendant Michael Lansky, president of Avid Telecom, Tuesday in a defendants’ supplement (docket 4:23-cv-00233) to their motion to dismiss a robocall case brought in May by the attorneys general of 48 states (see 2305240010). The complaint alleged Avid Telecom and executives Michael Lansky and Stacey Reeves facilitated robocalls or helped others make them. It alleged the defendants received 329 notifications from the USTelecom-led Industry Traceback Group, putting them “on notice” that Avid was transmitting illegal robocalls. The AGs seek a permanent injunction preventing defendants from initiating or transmitting illegal robocalls to U.S. consumers and from transmitting calls that violate the TSR, plus an award of damages of $1,500 per Title 47 violation, civil penalties of $10,000 and state penalties. Referencing what he called a “growing trend of caselaw,” Lansky noted Perrong v. Chase Data, in which the 3rd U.S. Circuit Appeals Court, citing City Select Auto Sales v. David Randall Associates, dismissed all TCPA claims vs. an individual business owner, raising doubt as to whether “common-law-personal participation liability is available against corporate officers under the TCPA.” Since the City Select ruling, courts in the 3rd Circuit have found that "a corporate officer is not liable under the TCPA common law personal liability principles,” said the supplement, noting KHS Corp. v. Singer Financial Corp. The defendants “acknowledge that the Perrong case is not binding precedent” on the court, but said the legal analysis it contains “is sound and reflects the growing view in courts across the country that the TCPA does not and cannot create personal liability in corporate officers for the allegedly illegal conduct of the company,” it said. The defendants request that claims against each of them in their individual capacities should be dismissed with prejudice.