Plaintiffs Sheila and Dennis Thompson are "precluded" from recovering any damages from Vintage Stock for a willful or knowing Telephone Consumer Protection Act violation, said the home entertainment retailer’s answer Thursday (docket 4:23-cv-00042) in U.S. District Court for Eastern Missouri in St. Louis to the Thompsons’ March 1 first amended complaint. Any such violation, which Vintage Stock denies occurred, wouldn’t have been willful or knowing, “but instead would have been unintentional and resulted from a bona fide error notwithstanding the exercise of reasonable efforts to fully comply with the law,” said its answer. The Thompsons allege Vintage Stock sent them dozens of promotional text messages over several years. They’re currently seeking to remand count II of their first amended complaint to St. Louis County Circuit Court where the complaint originated before Vintage Stock removed it from federal court in January 2023. Their remand motion came days after U.S. District Judge Stephen Clark granted Vintage Stock’s motion to dismiss without prejudice that count of the Thompsons’ complaint (see 2402090027). The judge found that the Thompsons lacked standing to bring the count II allegation that Vintage Stock failed to institute procedures for maintaining a list of persons who request not to be called.

Defendant Medica Central Insurance and 18 Jane and John Does acting on its behalf violated the Telephone Consumer Protection Act, alleged Christopher Prosser in a Jan. 24 class action in Jefferson County, Missouri, Circuit Court, removed Thursday (docket 4:24-cv-00276) to U.S. District Court for Eastern Missouri in St. Louis. Medica and its agents use automated systems to make outbound telemarketing calls and text messages to hundreds if not thousands of consumers across the U.S., soliciting consumers to purchase their services and insurance policies, in violation of the TCPA and the Missouri No-Call law, said the complaint. It alleges the defendants contacted numbers on the national do not call registry without their owners’ express written consent. Medica’s calls to a telephone subscriber on the Missouri DNC list is an “unfair practice” because it violates public policy and because it forced Prosser “to incur time and expense without any consideration in return,” the complaint said. Medica’s unlawful conduct “effectively forced” Prosser to listen to its advertising campaign, it said. Prosser personally listed his cellphone number on the national and Missouri DNC lists in February 2022, yet he received more than 18 telemarketing calls and text messages from Medica or its agents since Sept. 14, alleged his complaint. All the illegal telemarketing calls “were condoned, encouraged, enticed and ratified” by Medica and its agents, employees and vendors, said the complaint. The Missouri resident’s privacy and right to seclusion “has been grossly, deliberately, and repeatedly violated” by the illegal telemarketing calls, it said. He was “severely annoyed, harassed and humiliated by myriad telemarketers when he instructed them to stop calling his phone,” it said. Medica and its agents placed numerous calls “with one or more predictive dialers,” it said. Predictive dialers are capable of storing, producing and dialing any phone number, and they’re capable of storing, producing and dialing numbers “using a random or sequential number generator,” it said. No human manually entered Prosser’s cellphone number when Medica or its agents made the alleged calls, it said. The predictive dialer electronically dialed Prosser’s number “in an automated fashion,” thus constituting an automatic telephone dialing system, in violation of the TCPA, it said. The TCPA allows for treble damages of up to $1,500 for each knowing and willful violation, but the Missouri DNC call statute ratchets that up to $5,000.

Arthur Cochran intends to oppose the Dec. 13 motion of Boost Health Insurance to dismiss Cochran’s Telephone Consumer Protection Act class action (see 2312140005) in which it claims that it didn’t “purposefully avail itself of Florida” when the vendor it hired, Work Business Solutions, made telemarketing calls to Cochran and other individuals into Florida and to Florida area codes, said Cochran’s motion to compel discovery Thursday (docket 4:23-cv-00473) in U.S. District Court for Northern Florida in Tallahassee. In opposing the motion to dismiss, Cochran plans to demonstrate that Boost Health was aware that its vendor was contacting Florida area codes with its telemarketing calls, said his motion. Cochran needs discovery “to learn the extent of that conduct,” but Boost Health “has refused to produce the calling data that evidences how frequently” its vendor was contacting Florida area codes, it said. Boost Health has rejected Cochran’s discovery requests on grounds that the information he seeks isn’t relevant “to the claims and defenses of the parties and is not proportionate to the needs of the case,” said Cochran’s motion. Boost Health also argues that the discovery request “lacks reasonable temporal limitations and predates the time period” in which Cochran alleges to have received contact on behalf of Boost Health, it said. A defendant whose agent makes “tortious calls” to a Florida resident is subject to personal jurisdiction in the Northern District of Florida, it said. Courts evaluating personal jurisdiction in TCPA cases have regularly applied the “effects test” from the 1984 U.S. Supreme Court decision in Calder v. Jones “to evaluate whether a defendant purposefully availed himself of the privileges of doing business within the forum,” it said. Through his discovery request, Cochran is seeking documents and information reflecting that Boost Health was aware that its vendor was calling Florida telemarketing numbers, it said. Such information has been compelled or evaluated by courts to consider the issue, it said. The information he seeks about calls to Florida as part of the same campaign resulting in calls to Cochran is “critical” to responding to Boost Health’s motion to dismiss, “as other courts have relied on similar information in denying motions to dismiss for lack of personal jurisdiction in TCPA cases,” it said.

Omaha resident MaKenzie Lazo seeks to stop a Toyota dealership in Irving, Texas, from violating the Telephone Consumer Protection Act by making telemarketing calls to consumers without consent, including calls to phone numbers listed on the national do not call registry and to consumers “who have expressly requested that the calls stop,” said her class action Wednesday (docket 3:24-cv-00411) in U.S. District Court for Northern Texas in Dallas. Village Pointe Toyota also lacks a “sufficient” internal do not call system, causing consumers like Lazo “to receive unsolicited telemarketing calls despite having requested that the calls stop,” said her complaint. Lazo listed her cellphone number on the national DNC registry in October 2021, yet her complaint logs 76 unsolicited calls she received between June 27 and Jan. 8. The calls persisted even after she personally phoned the dealership multiple times asking that the calls stop, said the complaint. Lazo has owned her cellphone number for about 10 years and has never used it for business purposes or advertised it as a business number, said the complaint. She also has never done business with or inquired about a vehicle for sale at Village Pointe Toyota, it said. The unauthorized solicitation calls have harmed Lazo “in the form of annoyance, nuisance, and invasion of privacy,” it said. The calls also have occupied her phone line and disturbed the use and enjoyment of her phone, it said.

Carlos Delgadillo asked U.S. District Judge Nancy Edmunds for Eastern Michigan in Detroit to withdraw her Feb. 14 show cause order, said his response Wednesday (docket 2:24-cv-10039). The show cause order directed the plaintiff to explain why his Telephone Consumer Protection Act class action against FCA US shouldn’t be dismissed for failure to prosecute (see 2402150004). But Delgadillo responded that the court entered an order Jan. 29 extending the time for FCA to respond to the complaint to March 15. Delgadillo alleges that FCA violates the TCPA by placing prerecorded calls without consent to a group of individuals for whom the message isn't applicable and who requested not to receive the calls (see 2401090001). While calls designed to notify consumers about airbag recalls for their Chrysler cars are important, FCA is calling "a whole host of individuals who never owned a car that the recall is relevant to," including Delgadillo, he alleges.

Kohl’s denies that it violated the Telephone Consumer Protection Act “or any other statute, law or common law theory of recovery based on the allegations” in a Dec. 28 complaint (see 2312290001), said the retailer’s answer Wednesday (docket 1:23-cv-02312) in U.S. District Court for Southern Indiana in Indianapolis. Plaintiff Adrian Thomas alleges he fell behind on his monthly Kohl’s credit card payments, only to be hounded by the retailer’s incessant debt collection calls. Kohl’s answer asserted nine affirmative defenses against the allegations, including that Thomas “expressly or impliedly consented to and approved all of the acts and omissions” when he consented to be contacted by Kohl’s about his charge account when he agreed to the terms of the account in November 2022. Kohl’s alleges that the damages Thomas seeks violate the Constitution's due process clause, and constitute excessive fines in violation of the Eighth Amendment, said its answer. Granting Thomas’ demand for damages would result in unjust enrichment, it said. Thomas hasn’t alleged that he suffered any “particularized and concrete injury, whether tangible or intangible,” as a result of any contact Kohl’s made in connection with his charge account, it said. The damages Thomas seeks against Kohl’s, up to and including treble damages and punitive damages for willful and knowing TCPA infractions, after Thomas consented to be contacted, constitutes an excessive fine in violation of the Eighth Amendment, it said. Granting Thomas’ demand would result in his receiving more money than he’s entitled to receive, it said. That’s because none of the calls that Kohl’s made to Thomas was “in violation of the TCPA or any other law or theory of legal recovery,” it said.

Capital Infusion, which places solicitation calls to businesses that may require capital funding, violates the Telephone Consumer Protection Act by making telemarketing calls and sending text messages to consumers without consent, including calls and text messages to phone numbers listed on the national do not call registry, alleged Erica Cardenas’ class action Tuesday (docket 1:24-cv-20647) in U.S. District Court for Southern Florida in Miami. Capital Infusion, based in Miami, also violates the TCPA by contacting consumers “who have expressly requested that the calls and texts stop,” the complaint said. Cardenas, a resident of Chula Vista, California, alleges Capital Infusion “lacks a sufficient opt-out system” to ensure that a consumer who notifies the company to stop calling or texting them will be removed from its contact list, said the complaint. “Consumers and businesses have posted complaints online about unsolicited calls and text messages they received from Capital Infusion,” including from consumers who received additional unsolicited calls after telling the company to stop calling. Cardenas listed her cellphone number on the national DNC registry Nov. 9, yet she received multiple unwanted calls soliciting her about business finance loans, said her complaint. She told the callers she's not seeking business financing because she doesn't own a business, it said. The callers have been asking consistently to speak to an Eric Thompson, an individual she doesn’t know, it said. The unauthorized calls and text messages that Cardenas received from or on behalf of Capital Infusion have harmed her “in the form of annoyance, nuisance, and invasion of privacy,” it said. The calls and texts have also occupied her phone line and disturbed her use and enjoyment of her phone, it said.

U.S. District Judge Donald Middlebrooks for Southern Florida in Fort Lauderdale granted the unopposed motion of Harley-Davidson Financial Services to compel Michael Mordis’ Telephone Consumer Protection Act claims to arbitration, said the judge’s signed order Tuesday (docket 0:23-cv-62359). The parties agree that they are both bound by the arbitration provisions of Harley-Davidson’s dispute resolution agreement, said the order. The court agrees that Mordis’ claims under the TCPA and the Florida Consumer Collection Practices Act “can be submitted to arbitration, as the terms of the agreement may fairly be read to cover the claims at issue in this lawsuit,” it said. He ordered the case stayed pending resolution of the arbitration and for the parties to file a joint status report within 14 days after the arbitration award is issued. Mordis alleged that Harley-Davidson continued to “harass” him with debt collection calls to his cellphone after he bought a motorcycle but was unable to keep up with the regular monthly payments (see 2312180002).

Seven weeks to the day after U.S. District Judge Julien Neals for New Jersey in Newark denied Plymouth Rock’s motion to dismiss plaintiff Robert Clough’s Telephone Consumer Protection Act class action (see 2401030051), the New Jersey insurance company reacted aggressively on two fronts in its answer Friday (docket 2:21-cv-19343). Plymouth Rock first countersued Clough for violations of the New Jersey Insurance Fraud Prevention Act, alleging that he runs a “cottage industry” of filing “sham” TCPA lawsuits with the class action against Plymouth Rock just the latest. It then filed a third-party complaint alleging that its call vendor, ConnectThe Calls.com, and its owner, Marlen Rapoport, violated the terms of an October 2019 contract that bars the vendor from violating the TCPA and in which the vendor agreed to indemnify Plymouth Rock against legal peril. The counterclaim alleges that Clough falsely misrepresented his interest seeking automobile insurance policies and quotes, while fraudulently using a third person’s identity without permission. Clough did so “solely and expressly for the purpose of concocting an otherwise meritless claim” under the TCPA. Clough’s fraudulent actions “are prohibited under New Jersey common law and statutes,” it said. Clough’s fraud has caused actual harm to Plymouth Rock, said the counterclaim. The insurer “has been compelled to expend time and resources in connection with the handling of Clough’s fraudulent telephonic solicitations for an automobile insurance quote proposal in which he had no genuine interest,” it said. Clough’s fraud has caused further actual harm to Plymouth Rock in responding to such false claims “and defending against the concocted lawsuits,” including the litigation costs and fees it has been forced to pay, it said. In the third-party complaint, Plymouth Rock alleges that Rapoport and the vendor are liable for all debts and obligations “under the doctrines of veil piercing, alter ego, and successor liability.” Neither Rapoport nor the vendor “has taken any measures to defend or indemnify Plymouth Rock” against Clough’s claims in the TCPA complaint, it said. While denying all liability as to any and all claims in Clough’s complaint, Plymouth Rock “is entitled to a defense, indemnification, contribution, and breach of contract damages” from Rapoport and the vendor, it said.

Mutual of Omaha concedes it has a business relationship with Golden Ridge Insurance Agency but denies any wrongdoing under the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act, said Mutual’s answer Friday (docket 0:23-cv-62398) in U.S. District Court for Southern Florida in Fort Lauderdale to plaintiff Deborah Collins’ Dec. 26 class action (see 2312270001). Collins alleges that Mutual hired Golden Ridge to engage in automated telemarketing calls by contacting numbers listed on the national do not call registry, in violation of the TCPA. The Florida resident further alleges that Golden Ridge uses automated systems to make telemarketing calls from Florida, and that by doing so, Golden Ridge and Mutual violated the FTSA. But Mutual’s answer asserts 31 affirmative defenses, including that the court lacks personal jurisdiction over Mutual because the insurer isn’t “at home” in Florida and didn’t “place, authorize, or direct any of the calls at issue,” it said. As such, Mutual isn’t subject “to specific or general jurisdiction in Florida,” and it intends to challenge the court’s “personal jurisdiction over it on that basis,” it said. Mutual “reserves and expressly does not waive its right to challenge” the court’s personal jurisdiction, it said. The TCPA and the FTSA violate the First Amendment because “they impose content-based restrictions on speech that fail to withstand strict scrutiny,” said Mutual’s answer. The application of the TCPA and FTSA on which the complaint is based, including the imposition of statutory damages on Mutual, would violate the Constitution’s due process provisions, it said. Certain definitions contained in the TCPA render the statute “unconstitutionally vague,” and the statutory penalties that Collins seeks are “excessive,” it said. Any and all claims brought in Collins’ complaint are barred because Mutual “possessed a good-faith belief that it was not committing any wrongdoing,” it said. Any TCPA and FTSA violations resulted from a bona fide error, “despite reasonable practices to prevent violations” of those statutes and their related regulations, it said. Collins and her putative class members lack standing to bring the claims alleged in the complaint, said Mutual’s answer. Any harm allegedly caused by the calls at issue, which Mutual denies, isn’t “fairly traceable to any violation” that Mutual allegedly committed, and because Collins may not have suffered any Article III harm, it said. Any damages, injury, violation or wrongdoing alleged in the complaint was caused by third parties or Collins herself, for which Mutual can’t be held “vicariously liable,” it said. To the extent vendors or contractors or unrelated nonparties caused any damages, injury, violations of the law or wrongdoing, or engaged in the conduct alleged in the complaint, those entities or individuals “acted outside the scope, or in violation, of the parties’ agreements,” and Mutual didn’t “approve of that conduct,” it said. Even if Mutual could be held vicariously liable, its liability “must be eliminated or reduced by an amount proportionate to the fault attributable to third parties” or to Collins, it said.