Great Western Insurance “engages in unsolicited marketing, harming thousands of consumers in the process,” alleged Micheal Welch’s Telephone Consumer Protection Act class action Thursday (docket 6:24-cv-00234) in U.S. District Court for Middle Florida in Orlando. The Ormond Beach, Florida, resident seeks injunctive relief to halt Great Western’s “illegal conduct,” which has resulted “in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals,” said his complaint. He also seeks statutory damages on behalf of himself and members of the class, plus “any other available legal or equitable remedies,” it said. All of Great Western’s violations “were knowing, willful, and intentional,” and it didn’t maintain procedures “reasonably adapted to avoid any such violation,” it said. Welch’s number has been listed on the national do not call registry since May 2017, yet he received multiple unwanted calls from Great Western that began June 6, promoting its final expense life insurance policies, said the complaint. Welch told the caller he wasn’t interested and demanded that the company not call him again, it said. The calls nevertheless persisted, it said. At no point in time did Welch give Great Western his express written consent to be contacted, it said. Great Western’s unsolicited calls caused Welch “actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” said his complaint.

Plaintiff Kristy Beckwith and defendant Northeastern Health Group have reached a “resolution in principle” to resolve Beckwith’s Telephone Consumer Protection Act claims against the health insurance company, said the parties’ joint notice Wednesday (docket 0:23-cv-62387) in U.S. District Court for Southern Florida in Fort Lauderdale. The parties anticipate filing a notice of dismissal of the action with prejudice as to Beckwith’s individual claim within 30 days, it said. They ask that all current deadlines and hearings be suspended pending the filing of the notice of dismissal, it said. A magistrate judge ordered the parties Jan. 18 to agree on a mediator and to file a notice of their selection of that mediator by Wednesday (see 2401190034). Beckwith’s Dec. 21 class action alleged that Northeastern made telemarketing calls to residential phone numbers listed on the national do not call registry, in prohibition of the TCPA (see 2312220017).

Johnson & Wales University (JWU) denies “each and every allegation” in plaintiff Lawrence Wright’s Nov. 22 Telephone Consumer Protection Act class action that it, or someone acting on its behalf, makes recorded telemarketing calls to promote its degree programs, and does so without prior express written consent (see 2311270009), said JWU’s answer Wednesday (docket 3:23-cv-01941) in U.S. District Court for Middle Pennsylvania in Scranton. The university contends that Wright lacks Article III standing because he suffered no injury or that he suffered a “de minimis injury insufficient to satisfy Article III,” said its answer. If Wright did suffer an injury, as he alleges, any such injury “was the result of superseding intervening causes,” including his own conduct, for which the school “is in no way legally responsible,” it said.

Joseph Davis filed suit against Clear Health to halt the health insurer’s "campaign" to generate new customers through the use of telemarketing, “despite not having the requisite consent to contact those individuals” who, like him, listed their residential cellphone numbers on the national do not call registry, said his Telephone Consumer Protection Act class action Wednesday (docket 1:24-cv-00187) in U.S. District Court for Northern Ohio in Cleveland. Because telemarketing campaigns use technology capable of generating thousands of similar calls per day, Davis “sues on behalf of proposed nationwide classes of other persons who received similar calls,” said the complaint. The Ohio resident estimates receiving at least 10 telemarketing calls from Clear Health between Dec. 13 and Jan. 5, including three calls Dec. 29 and four Jan. 5, despite having listed his number on the national DNC registry since Oct. 23, said his complaint. Davis and the other call recipients “were harmed by these calls,” it said. “They were temporarily deprived of legitimate use of their phones because their phone lines were tied up during the telemarketing calls and their privacy was improperly invaded,” it said. The calls also injured Davis and the other call recipients “because they were frustrating, obnoxious, annoying, were a nuisance and disturbed the solitude of plaintiff and the class,” it said.

Brenda Everett’s class action is her “strained attempt” to get money from defendant Exact Care Pharmacy under the Telephone Consumer Protection Act for a call that she “not only consented to but requested,” said the pharmacy’s brief Tuesday (docket 4:23-cv-01649) in U.S. District Court for Middle Pennsylvania in Williamsport in support of its motion for judgment on the pleadings. Everett’s complaint said her number has been listed on the national do not call registry since June 4 (see 2310050003). Congress passed the TCPA to protect individuals from receiving only unwanted calls, said Exact Care’s brief. “Prior express consent is an absolute defense to liability under the TCPA,” it said. Because the plaintiff “consented to the call she now complains of, her claims should be dismissed under Rule 12,” it said. Correspondence between counsel for the parties indicates that Everett doesn’t dispute that she provided Exact Care with express written consent to be called, emailed or texted from ExactCare and its marketing partners about health-related offers using automated technology, it said. Instead, it appears that her alleged dispute about Exact Care’s communication is that, as she now claims, her consent didn’t allow Exact Care to contact her by a prerecorded voice message, it said. In other words, she claims that automated technology doesn’t “encompass prerecorded voice messages,” it said. This “hair-splitting argument” fails for several reasons, it said. It’s “self-evident” that consent to be contacted by automated technology includes consent to be contacted “by all forms of automated technology, including prerecorded voice messages,” said the brief. The TCPA was designed to protect individuals from intrusive, unwanted calls, not calls like the one at issue in this case that an individual “requests and then attempts to manipulate into a TCPA claim,” it said.

McAfee denies all the allegations in plaintiff Victoria Roehrman’s Nov. 30 class action that McAfee’s “widespread practice” of sending “misleading and unsolicited” marketing text messages to consumers violates the Telephone Consumer Protection Act and Indiana’s Deceptive Consumer Sales Act, said McAfee’s answer Tuesday (docket 1:23-cv-02146) in U.S. District Court for Southern Indiana in Indianapolis (see 2312010013). McAfee contends that the Southern District of Indiana lacks subject-matter jurisdiction over Roehrman’s action because the U.S. Supreme Court decided in Barr v. American Association of Political Consultants in 2020 that the TCPA’s automated call restriction was unconstitutional, said its answer. The constitutionality of the statute’s content discrimination element “will remain unresolved until the district court enters final judgment in that case,” it said. The TCPA and its enabling regulations “are also unconstitutional for several other reasons,” including under the First Amendment and the Constitution’s due process clause, it said. Roehrman and her putative class members lack standing to bring the claims alleged in her complaint because any harm allegedly caused by the texts at issue, which McAfee denies, isn’t “fairly traceable” to any violation allegedly committed by McAfee, and because Roehrman may not have suffered any Article III harm, it said.

The Memorial Hermann Health System in southeast Texas violated the Telephone Consumer Protection Act by placing numerous debt collection calls to Tonia Pope’s cellphone using prerecorded messages without her consent, alleged Pope’s complaint Tuesday (docket 4:24-cv-00342) in U.S. District Court for Southern Texas in Houston. Pope demanded that Memorial Hermann cease placing calls to her cellphone, but the calls nevertheless persisted, said the complaint. Memorial Hermann’s use of prerecorded messages “brings its conduct within the ambit of the TCPA,” it said. Pope has suffered concrete harm as a result of Memorial Hermann’s actions, including invasion of privacy, aggravation that accompanies unwanted debt collection calls, emotional distress and numerous violations of her state and federally protected interests “to be free from harassing and abusive debt collection conduct,’ it said. Pope’s lawsuit also alleges violations of the Texas Debt Collection Act.

Spark Energy is engaged in a scheme to sell natural gas and energy services "via cold calls” to residential phone numbers on the national do not call registry, alleged Brian Clark's Telephone Consumer Protection Act class action Tuesday (docket 4:24-cv-00568) in U.S. District Court for Northern California in Oakland. Spark Energy made 10 calls to Clark’s home phone number in Alameda County, California, between March 3 and March 21 trying to pitch services using recorded messages, the complaint said. The plaintiff never gave Spark or any other person or affiliate associated with the company written permission to call him, and his home phone number has been registered on the national DNC registry since December 2007, it said. Clark received a voice message from “Michelle,” requesting a callback about Clark’s natural gas bill, the complaint said. “Upon listening to the voice messages, it was clear that ‘Michelle’ was an artificial voice and not a natural person,” the complaint said. Subsequent messages used “nearly identical wording” and “the same monotone speaking structure,” showing that they were recorded messages “and not a call from a live person,” it said. On March 23, Clark called the callback number, 888-928-3199, and “was immediately connected to Spark,” it said. The defendant may have made more violative calls to Clark’s line that he wasn’t able to log or identify at the time. He includes claims for those calls, “even though the specifics of the dates and times are unknown at this time without the aid of discovery,” it said. Clark claims violations of the TCPA for calls to a number on the DNC and for recorded marketing calls to residential numbers. He seeks awards of $500 for each violation and $1,500 for each willful violation, plus injunctive relief, attorneys’ fees and legal costs.

Kohl’s denies it violated the Telephone Consumer Protection Act or the Ohio Consumer Sales Practices Act, as plaintiff Tina Schafer alleges in her Nov. 20 complaint (see 2311210003), said Kohl’s answer Monday (docket 5:23-cv-02245) in U.S. District Court for Northern Ohio in Akron. Schafer alleges that Kohl's hounded her with debt collection calls after she fell into financial hardship and was no longer able to make the monthly payments on her credit card account. But Schafer’s claims are barred by the doctrines of unclean hands and waiver because she informed Kohl’s that she consented to be contacted about her Kohl’s charge account when she agreed to the terms of the Kohl’s card member agreement in December 2021, “including at the telephone number at issue in this case,” said Kohl’s answer. The damages Schafer seeks violate the due process clause of the Constitution, and constitute excessive fines in violation of the Eighth Amendment, the retailer said. Granting her demand for damages would result in unjust enrichment, Kohl’s said. Schafer also hasn’t alleged that she suffered any “particularized and concrete injury, whether tangible or intangible,” as a result of any contact made by Kohl’s in connection with her charge account, it said.

U.S. Magistrate Judge Barbara Major for Southern California in San Diego signed an order Monday (docket 3:23-cv-00199) confirming plaintiff Matilde Cowen’s Telephone Consumer Protection Act settlement with Kohl’s and directing the parties to file their joint motion for dismissal of the case by April 1. If the signed joint motion for dismissal is timely filed, the parties and attorneys aren’t required to make any further appearances, said the order. If the joint motion isn’t filed by April 1, then all counsel of record are required to appear in person for an April 4 settlement disposition conference, it said. If anyone fails to appear at the conference, or the parties fail to timely file the joint motion for dismissal, the judge will issue an order to show cause why sanctions shouldn’t be imposed for failing to comply with the order, it said. Cowen alleged she had to fend off calls from Kohl’s debt collection agents as often as twice a day, sometimes every day, in violation of the TCPA and also California’s Rosenthal Fair Debt Collection Practices Act (see 2302030043). Cowen estimates Kohl’s called her more than 150 times in total, after receiving written notice from her lawyers revoking any prior consent to call.