A solar panel company hired an unidentified vendor to make telemarketing calls to numbers on the national do not call registry, in violation of the Telephone Consumer Protection Act and the Texas Business and Commerce Code, alleged a class action Monday (docket 1:24-cv-00066) in U.S. District Court for Western Texas in Austin. Plaintiff Kelly Pinn’s number has been on the DNC registry for more than a year, yet she received multiple automated calls and text messages from Greenstar Power and its vendor as part of a telemarketing campaign between May 4 and Jan. 8, alleged her complaint. A “reasonable seller” whose telemarketers are making calls on its behalf would investigate why they would be calling numbers on the national DNC registry, it said. The Texas resident’s privacy has been violated by the telemarketing calls, and she never gave her consent to receive those calls, it said.

A three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed the district court’s award of summary judgment for Career Counseling over AmeriFactors Financial Group in a Telephone Consumer Protection Act class action and also affirmed the lower court’s denial of Career Counseling’s motion for class certification, said its published opinion Monday (docket 22-1136). Plaintiff Career Counseling alleged that defendant AmeriFactors sent it and thousands of other recipients an unsolicited fax ad, in violation of the TCPA. In denying class certification, the district court determined that Career Counseling failed to satisfy Rule 23’s implicit requirement of “ascertainability,” and the 4th Circuit agreed, said the opinion. That determination derived from the “uncontroverted factual premise” that each of the nearly 59,000 recipients of the AmeriFactors fax was using either a stand-alone fax machine or an online fax service, it said. The court concluded that stand-alone fax machines, but not online fax services, qualify as fax machines under the TCPA, it said. That conclusion “rendered it necessary to be able to identify which of the fax recipients were using stand-alone fax machines and which were using online fax services,” it said. Because the court wasn’t convinced that the stand-alone fax machine users are readily identifiable, “it decided that the ascertainability requirement has not been satisfied,” it said. On AmeriFactors’ cross-appeal challenge of the summary judgment award for Career Counseling, AmeriFactors argues there is “a genuine dispute of material fact” as to whether it is liable as the sender of the fax, it said. “We agree with the district court that there is insufficient evidence of any fraud and deception” to place AmeriFactors’ sender liability in dispute, it said. AmeriFactors thus being liable for sending the fax, “we affirm the court’s award of summary judgment to Career Counseling,” it said.

Full Sail University, a private for-profit college, hired a Florida call center vendor, the Office Gurus, to place unsolicited marketing calls to promote its online course work, “harming thousands of consumers in the process,” alleged plaintiff Kristy Beckwith’s Telephone Consumer Protection Act class action Friday (docket 6:24-cv-00136) in U.S. District Court for Middle Florida in Orlando. Full Sail, specializing in entertainment, media and emerging technologies degrees, is in Winter Park, Florida. Many of the defendants’ TCPA violations “were knowing, willful, and intentional,” and they failed to “maintain procedures reasonably adapted to avoid any such violation,” said the complaint. Beckwith's cellphone number has been listed on the national do not call registry since July 25, yet the Office Gurus phoned the South Dakota resident at least five times on Full Sail’s behalf beginning Aug. 6, and the calls persisted at least through Sept. 2, it said. At no point in time did Beckwith provide the defendants with her express written consent to be contacted, it said. The unsolicited calls caused her “actual harm,” including “invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” it said. The calls also inconvenienced Beckwith “and caused disruption to her daily life,” it said. Beckwith estimates that she spent “numerous hours” investigating the unwanted calls, including trying to learn who the defendants were and how they got her number, said the complaint. The “cumulative effect” of unsolicited calls and voicemails like those attributable to the defendants “poses a real risk of ultimately rendering the phone unusable for other purposes as a result of the phone’s memory being taken up,” it said.

Rocket Mortgage filed contemporaneous motions Wednesday (docket 2:23-cv-02385) in U.S. District Court for Arizona in Phoenix to compel plaintiff Kellie Deits’ Telephone Consumer Protection Act claims to arbitration and to dismiss her complaint for failure to state a claim. Deits alleges Rocket phoned her 30 times in 10 days as part of a nationwide telemarketing campaign to promote its business and to generate leads for its mortgage-related products and services (see 2311150001). But Deits “expressly agreed” to Rocket’s terms of use, including the TCPA-related arbitration provision, when she submitted an online request in April to be contacted about Rocket's products and services, including by phone, said its motion to compel. Deits’ “vague and conclusory” pro forma complaint “alleges little more” than that she received phone calls from Rocket for up to 10 days after she allegedly requested that Rocket stop calling, said its motion to dismiss. Her “sparse and conclusory allegations” are insufficient to state a “cognizable” TCPA claim against Rocket “for multiple, independent reasons,” it said.

A real estate firm headquartered in Cypress, Texas, “routinely violates” the Telephone Consumer Protection Act by delivering advertisement or marketing text messages to residential cellphone numbers listed on the national do not call registry without the prior express invitation or permission required by the TCPA, alleged Kellie Banfield’s class action Thursday (docket 5:24-cv-00073) in U.S. District Court for Western Texas in San Antonio. The firm, Lone Star Buyers, also violates the TCPA by failing to identify the names of the individual caller and the person or entity on whose behalf the call is being made and a phone number or address where the person or entity may be contacted, said the complaint. Banfield listed her cellphone number with the DNC registry in 2009, “and has maintained that registration through the present date,” it said. Yet starting Nov. 17, the San Antonio, Texas, resident received at least four text messages from Lone Star, each seeking to solicit her to use firm to sell her house, it said. Banfield didn’t recognize the sender, and wasn’t looking to sell her home, said the complaint. Lone Star “seeks to supplant the role of a traditional real estate agent” while providing the same services, it said. In exchange for doing so, Lone Star is “compensated by obtaining a homeowner’s property at a reduced price, and thereafter selling it at an inflated price,” it said. The firm also collects “motivated seller consumer data and resells that information to investors, including by way of executing assignment contracts,” said the complaint. Banfield didn’t give Lone Star “prior express invitation or permission” to send marketing text messages to her cellphone number, it said. She suffered “actual harm as a result of the text messages at issue in that she suffered an invasion of privacy, an intrusion into her life, and a private nuisance,” it said, She suffered additional harm “due to her frustration and difficulty in identifying the entity and persons responsible” for the unwanted text messages to her cellphone number, it said. Lone Star knew, or should have known, that Banfield registered her cellphone number with the DNC registry, it said.

U.S. Magistrate Judge Alicia Valle for Southern Florida in Fort Lauderdale directed plaintiff Kristy Beckwith and defendant Northeastern Health Group to agree on a mediator and to file notice of the selection of that mediator by Jan. 31, as is required under Federal Rule of Civil Procedure 16 and Local Rule 16.2, said the judge’s order, signed Wednesday and posted Thursday (docket 0:23-cv-62387). The notice will specify the place, date and time of mediation, said the order. If there’s no agreement on a mediator, the clerk will designate one “on a blind rotation basis,” it said. If mediation isn’t conducted, the case “may be stricken from the trial calendar, and other sanctions may be imposed,” it said. Beckwith’s Dec. 21 class action alleges Northeastern, a health insurance company, made telemarketing calls to residential phone numbers listed on the national do not call registry, in prohibition of the Telephone Consumer Protection Act (see 2312220017).

The principal campaign committee for House Speaker Mike Johnson, R-La., seeks the dismissal of William Hunsaker’s Telephone Consumer Protection Act complaint, said its motion Tuesday (docket 1:23-cv-03322) in U.S. District Court for Colorado in Denver. Hunsaker alleges that the committee, Mike Johnson for Louisiana, inundated his cellphone with at least five text-message solicitations for campaign donations without his prior consent (see 2312190001). But the Denver court “lacks either general or specific personal jurisdiction” over the committee, said the motion to dismiss. More specifically, the court has no general jurisdiction over the committee because the committee’s affiliations with Colorado aren’t “extensive or unique enough to render the committee at home in Colorado," it said. The court also has no specific jurisdiction over the committee because Hunsaker’s suit didn’t arise from the committee’s conduct in Colorado, it said. Any attempt to assert specific personal jurisdiction over the committee in Colorado “would offend traditional notions of fair play and substantial justice,” it said. Hunsaker lives in Colorado.

Montgomery Ward has inundated Lena Sanchez for months with “systematic” debt collection calls using a prerecorded or artificial voice, in violation of the Telephone Consumer Protection Act, alleged Sanchez’s complaint Wednesday (docket 3:24-cv-00028) in U.S. District Court for Western Wisconsin in Madison. The Wisconsin resident previously obtained a line of credit through Montgomery Ward to purchase personal and household goods, said her complaint. Sanchez suffers from a variety of medical and physical ailments, “and has been deemed disabled,” it said. As a result, she “has been rendered unable to work,” which has “inherently caused” many of her financial obligations “to go into default,” including on her Montgomery Ward account, it said. Sanchez has demanded that the retailer stop calling her, and has "even reiterated such requests during subsequent calls,” it said. But “rather than being understanding” of her situation and requests, Montgomery Ward has continued to place at least 25 calls to Sanchez’s cellphone through the filing of her action, it said.

Moxie Robot, an AI robotics company, denies that it violated the Telephone Consumer Protection Act or that plaintiff Ethan Radvansky or his putative class members “are entitled to any relief whatsoever,” said Moxie’s answer Tuesday (docket 3:23-cv-00224) in U.S. District Court for Northern Georgia in Newnan to Radvansky’s Nov. 21 class action (see 2311220003). Radvansky alleges that Moxie delivered at least six promotional text messages to his residential cellphone after he had listed his number on the national do not call registry April 18. But Radvansky and the putative class members are barred from asserting their claims in whole or in part to the extent that the text messages at issue “were made with the recipients’ prior express written permission and/or consent and that consent was either irrevocable or was not effectively revoked,” it said. Radvansky also can’t assert claims under the TCPA against Moxie to the extent he or others “voluntarily provided telephone numbers for the purpose of receiving messages like those referenced” in the complaint, it said. Any claim for treble damages is barred because Moxie didn’t “engage in knowing or willful misconduct,” it said.

Meira Avauni Rawlings filed a Telephone Consumer Protection Act class action “to protect the privacy rights of herself and a class of similarly situated people” to whom Bath Fitter placed telemarketing calls despite their phone numbers being listed on the national do not call registry, said her complaint Tuesday (docket 1:24-cv-00073) in U.S. District Court for Middle Pennsylvania in Harrisburg. The TCPA’s “private right of enforcement” is critical to stopping the “proliferation” of unwanted telemarketing calls, said the complaint. Yet Bath Fitter, a marketer of bathroom remodeling products and services, “has long engaged in aggressive telemarketing,” and has settled at least one class action lawsuit involving telemarketing calls, the complaint said. Even after a judgment was entered against Bath Fitter, “it continued to engage in its aggressive telemarketing practices,” it said. Rawlings alleges she received at least four Bath Fitter telemarketing calls to her cellphone, though her number was listed on the DNC registry since June 2021. The North Carolina resident had never previously done business with Bath Fitter, “nor had she provided prior express written consent, or any form of consent,” for the company to call her phone, said the complaint. “Without having had the benefit of discovery to show otherwise, Rawlings understands and therefore avers that Bath Fitter is directly liable for the unsolicited calls because they were made directly by Bath Fitter,” it said. If some or all of the calls were made by third parties on Bath Fitter’s behalf, then Bath Fitter “is vicariously liable for those calls,” it said.