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.

The office of Florida Attorney General Ashley Moody (R) and robocall defendant Smartbiz Telecom seek a continuance of their trial for at least 90 days, said their joint motion Feb. 13 for continuance (docket 1:22-cv-23945) in U.S. District Court for Southern Florida in Miami. The court on Nov. 30 rescheduled the trial to start during the two-week period beginning March 4. The trial is set for a five-day period and will involve “novel and complex technical and legal issues” unique to the telecom field and federal law and regulation, it said. The continuance is being requested so that Smartbiz can secure additional counsel for the trial, and numerous technical issues in the cross motions for summary judgment can be resolved on their merits at trial, said the motion. The extension is sought “in good faith and not for purposes of delay.” Moody’s December 2022 complaint alleges that Smartbiz is “one of the most prolific transmitters of illegal robocalls” in the U.S., and that the VoIP company violated the Telemarketing and Consumer Fraud and Abuse Prevention Act and other statutes, plus the FTC's Telemarketing Sales Rule (see 2212060034).

Aflac violated the Telephone Consumer Protection Act by placing a single telemarketing robocall Sept. 7 to Stewart Smith, despite his cellphone number having been listed on the national do not call registry since June 2010, alleged Smith’s class action Thursday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia. 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 DNC registry, said the complaint. Through its conduct, Aflac has invaded Smith’s privacy and that of his class members, it said. At no point did Smith provide Aflac with his express written consent to be called for telemarketing purposes, it said. As a result of the unlawful robocall, Smith “experienced frustration, annoyance, irritation and a sense that his privacy had been invaded,” it said.

Core Home Security, a security installation and monitoring company, violates the Telephone Consumer Protection Act and Florida Telephone Solicitation Act by placing unwanted telemarketing calls to consumers who don’t want to receive them and gave the company no consent to be called, alleged Victoria Starr-Harris’ class action Wednesday (docket 0:24-cv-60250) in U.S. District Court for Southern Florida in Fort Lauderdale. Starr-Harris' residential cellphone number has been listed on the national do not call registry since October 2016, yet she began receiving prerecorded telemarketing calls to that number on June 12 from Core, promoting its security monitoring services, said her complaint. At no point did the Davie, Florida, resident give the company her express written consent to be contacted, as the TCPA requires, it said. The company’s unsolicited phone calls and text messages caused her “actual harm,” including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass and conversion, it said. The calls also inconvenienced her and caused disruption to her daily life, it said. She estimates that she spent “numerous hours” investigating the unwanted phone calls, including how they obtained her number and who the defendant was, it said. The 11th U.S. Circuit Court of Appeals, in its July 24 en banc decision in Drazen v. GoDaddy.com (docket 21-10199), held that plaintiffs have a concrete Article III injury under the TCPA with only a single unwanted call or text message from a defendant, said the complaint.

U.S. District Judge Nancy Edmunds for Eastern Michigan in Detroit ordered Carlos Delgadillo to show cause in writing by Feb. 21 why his Telephone Consumer Protection Act class action against automaker FCA US shouldn’t be dismissed for failure to prosecute, said the judge’s signed order Wednesday (docket 2:24-cv-10039). Failure to respond may result in the case's dismissal, said the order. 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 in this case, he alleges.

U.S. District Judge Paula Xinis for Maryland in Greenbelt denied motions for summary judgment from Telephone Consumer Protection Act co-defendants Geico and its vendor ExamWorks against Michael Smith, said her signed memorandum opinion Wednesday (docket 8:21-cv-02746). Smith alleges ExamWorks inundated his cellphone with prerecorded telemarketing robocalls it made on Geico’s behalf (see 2308110043). Smith’s testimony “is sufficient to defeat summary judgment on the question of consent,” said Xinis’ order. Alternatively, even if somehow the court could grant summary judgment on whether Smith’s initial furnishing of his phone number qualifies as express prior consent, “a genuine issue of fact exists as to whether Smith immediately revoked that consent through his counsel,” it said.

Though plaintiff Aaron Rapp’s cellphone number has been listed on the national do not call registry for almost 20 years, the National Agents Alliance made numerous unauthorized phone calls to that number for the purpose of soliciting insurance business, said Rapp’s Telephone Consumer Protection Act class action Tuesday (docket1:24-cv-00068) in U.S. District Court for Northern Indiana in Fort Wayne. The alliance recruits, screens and trains independent contractors to sell insurance for various insurance carriers, said the complaint. It has been recognized as one of the most prominent independent marketing organizations in the U.S. and has sold more than $1.6 billion worth of life insurance policies to American consumers, Rapp's complaint said. But the alliance “has sought to grow its business by flagrantly disregarding the TCPA and its governing regulations,” said the complaint. Rapp didn’t provide the alliance with his cellphone number at any point in time, nor did the Indiana resident give permission for the alliance to make phone solicitations to him or to send or leave him telemarketing messages, it said. The alliance failed to establish and implement “reasonable practices and procedures” to effectively prevent phone solicitations to Rapp and other similarly situated persons, in violation of the TCPA’s implementing regulations, said the complaint. The alliance has “intentionally and repeatedly violated” the TCPA, and Rapp “properly alleges injuries in fact,” which are traceable to the alliance’s unlawful acts, “and are likely to be redressed by a favorable judicial decision,” it said.

Paul Sapan’s Oct. 20 class action alleging that Shore Capital sells mortgage services via "cold calls" to residential phone numbers listed for years on the federal do not call registry (see 2310210002) should be dismissed for failure to state a claim, said Shore’s motion Tuesday (docket 8:23-cv-01974) in U.S. District Court for Central California in Santa Ana. While Sapan’s complaint “makes particular (albeit inconsistent) allegations” regarding Capital Mortgage, it contains no allegations regarding Shore Capital, said the motion. Since there are no charging allegations against Shore Capital other than notes that Sapan attached to his complaint, and no allegation that substantively ties Shore Capital to Capital Mortgage, “there is no basis for liability of Shore Capital,” it said.

The 3rd U.S. Circuit Court of Appeals tentatively calendared oral argument for the week of April 8 in plaintiff-appellant Andrew Perrong’s appeal to reverse the district court’s July 18 dismissal of his Telephone Consumer Protection Act case against the Democratic Committee of Montgomery County, Pennsylvania, the court said in a letter Tuesday (docket 23-2415) to Perrong’s counsel. The district court found no binding precedent in the 3rd Circuit or U.S. Supreme Court that squarely addressed whether randomly or sequentially calling all numbers on a previously compiled list constituted an automatic telephone dialing system that violates the TCPA, as Perrong alleges (see 2308090033). Relying on the TCPA’s statutory language, the district court said a device that randomly or sequentially calls all phone numbers in a previously compiled list wouldn’t qualify as an ATDS as long as the numbers weren’t randomly or sequentially generated.

Telephone Consumer Protection Act plaintiff Mark Bruder and defendants Charter Communication and Spectrum “settled all matters in controversy in principle and are in the process of finalizing their settlement of this matter,” said Bruder’s settlement notice Monday (docket 4:23-cv-01075) in U.S. District Court for Eastern Missouri in St. Louis. The parties expect to file a stipulation of dismissal with prejudice within the next 60 days as part of that settlement, said the notice. They request a stay of 60 days to allow them time to finalize the settlement agreement, procure necessary signatures, “and allow the parties adequate time to fulfill the terms of the settlement agreement in their entirety,” it said. Bruder asks that the court vacate all outstanding case deadlines and court dates, it said. Bruder’s Aug. 25 complaint alleged that Charter and Spectrum send automated texts to individuals throughout the U.S. who should be on their internal do not text lists, and that they do so without obtaining consumers’ prior express written consent (see 2308250040).