Michael Dahdah’s Dec. 22 opposition to defendant Rocket Mortgage's motion for reconsideration of the court’s order denying the company’s motion to compel the plaintiff’s Telephone Consumer Protection Act claims to arbitration (see 2312270013) “fails to undercut” Rocket’s showing that reconsideration “is warranted here,” said Rocket’s reply memorandum Monday (docket 4:22-cv-11863) in U.S. District Court for Eastern Michigan in Flint. Dahdah’s opposition “effectively concedes” that the court’s order “misapplied the law and the facts” in denying the motion to compel, said the memorandum. Dahdah’s argument rests on a “misstatement” of the court’s holding, which actually denied the motion to compel “based on finding a dispute of facts,” it said. The plaintiff also is wrong that Rocket “has somehow waived its right to arbitration,” it said.

MarketPro Homebuyers, a real estate marketing company and leads generation business, has complied with the Telephone Consumer Protection Act “and is entitled to each defense stated in the TCPA and any and all limitations of liability,” said its answer Tuesday (docket 1:23-cv-02364) in U.S. District Court for Maryland in Baltimore to the class action allegations of plaintiffs Erin Wilcox and Connie Slingbaum (see 2308300002). The plaintiffs allege that MarketPro bombards consumers whose numbers are listed on the national do not call registry with text-message solicitations seeking to buy their homes for cash “as is.” But the plaintiffs’ claims are barred because MarketPro didn’t initiate any telephone solicitations nor engage in telemarketing activity directed to them, said MarketPro’s answer. The plaintiffs also failed to take reasonable steps “to mitigate, alter, reduce, or otherwise diminish the alleged damages,” and so they’re barred “from recovering any damages that might have been prevented,” it said. MarketPro also contends that the plaintiffs aren’t the owners of the cellphone numbers identified in their complaint, and that they don’t maintain those numbers “as personal residential numbers,” it said.

The 9th U.S. Circuit Appeals Court scheduled a dial-in mediation conference for Feb. 2 at 1 p.m. PST in plaintiff-appellant Patricia Crawford’s appeal that seeks to reverse the district court’s dismissal of her Telephone Consumer Protection Act claims against the National Rifle Association’s political action committee, said the court’s order Tuesday (docket 23-3830). Under the 9th Circuit’s newly amended briefing schedule, Crawford’s opening brief is due Feb. 9, the NRA’s answering brief is due March 11 and Crawford’s optional reply brief is due 21 days from the service date of the answering brief, said the order. Crawford alleges she received a text message from the NRA that included a video file with an audible prerecorded voice. She contends that the district court erred by concluding that the video didn’t violate the TCPA’s prohibitions against calls and text messages with artificial or prerecorded voices. Another case with identical issues, Jacob Howard v. Republican National Committee (docket 23-3826), is also pending before the 9th Circuit (see 2311290033).

Plaintiff Steven Lowe and defendant Harley-Davidson Credit Corp. agree that they’re required to arbitrate Lowe’s Telephone Consumer Protection Act claims per the promissory note and security agreement between the parties and under the Federal Arbitration Act, said their joint stipulation Monday (docket 2:23-cv-08521) in U.S. District Court for Central California in Los Angeles. The contract calls for arbitration with the American Arbitration Association, said the stipulation. The parties agree “that there is a valid written arbitration agreement that is enforceable under ordinary state law contract principles,” it said. They also agree that the case should be stayed pending the outcome of the arbitration, it said. Lowe, a Long Beach, California, resident, alleged that Harley-Davidson phoned him more than 120 times, though his cellphone number was listed on the national do not call registry since June 2019 (see 2310110010).

Plaintiff Brandi Taylor and defendant Kohl’s agree to the dismissal with prejudice of Taylor’s Telephone Consumer Protection Act claims against the retailer, said their joint stipulation Monday (docket 2:23-cv-01874) ) in U.S. District Court for Eastern California in Sacramento. Each side will bear its own costs and attorneys’ fees, said the stipulation. Taylor’s Aug. 31 complaint alleged that Kohl’s inundated her for months with “systematic” debt collection calls using a prerecorded or artificial voice, in violation of the TCPA (see 2309010001).

Automaker FCA US violates the Telephone Consumer Protection Act 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, alleged Mansfield, Texas, resident Carlos Delgadillo in a class action Sunday (docket 2:24-cv-10039) in U.S. District Court for Eastern Michigan in Detroit. FCA places those calls to consumers to notify them about product recalls, per Delgadillo’s experience, said the complaint. While calls designed to notify consumers about air bag 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, it said. FCA continues to call these consumers “despite all of their best efforts” to opt out of these calls using FCA’s “own opt-out mechanisms,” or by calling FCA and speaking to a live agent demanding that the calls stop, it said. FCA’s unlawful conduct leaves consumers “in an endless doom loop of prerecorded calls they cannot exit from,” it said. Delgadillo alleges receiving 78 calls from FCA between May 15 and Dec. 26, often twice a day, including one call on Christmas Day, despite his multiple demands that the calls stop, said the complaint.

Ezra Elstein seeks to “vindicate his federal statutory rights” under the Telephone Consumer Protection Act to stop Premium Capital Fund, a business loan company, from waging its campaign of “illegal text messaging,” said his class action Friday (docket 1:24-cv-00086) in U.S. District Court for Southern New York in Manhattan. The Pennsylvania resident seeks damages, injunctive relief and “any other available legal or equitable remedies” resulting from Premium’s “illegal actions” of negligently and willfully contacting him and other “similarly situated consumers” in violation of the TCPA, said his complaint. Though Elstein listed his cellphone number on the national do not call registry in February 2019, Premium sent several unauthorized telemarketing text messages to that number in November for “the purpose of soliciting business,” it said. By making such telephone solicitations, Premium has invaded Elstein’s “personal privacy” and that of his putative class members, it said. The TCPA was enacted “to protect consumers from unsolicited and unwanted communications exactly like those alleged in this case,” it said. Elstein didn’t provide Premium with his cellphone number at any point in time, nor did he give permission for the company to message it, said the complaint. He also didn’t have an established business relationship with Premium at any point in time, it said.

Plaintiffs Kimberly Hudson and Julius Bryant filed suit Thursday against healthcare insurance company SPI Holdings “to protect their privacy rights, namely the right to be left alone from unwanted telemarketing phone calls,” said their Telephone Consumer Protection Act complaint (docket 4:24-cv-00030) in U.S. District Court for Southern Texas in Houston. Hudson owns two cellphones for her private, residential use. She listed both her numbers on the national do not call registry at least as early as July 2003, said the complaint. Bryant listed his residential cellphone on the DNC registry in March 2019, it said. Yet SPI or someone acting on its behalf placed 52 telemarketing calls to Hudson and Bryant collectively, alleges their complaint. Without the benefit of discovery, the Arlington, Texas, residents “assume SPI directly placed the calls at issue,” it said. If SPI directly placed those calls, SPI is “directly liable for those calls,” it said. But if discovery reveals that some or all of the calls were made by third parties on SPI’s behalf, then SPI is still at least “vicariously liable for those calls,” it said. The FCC’s May 2013 declaratory ruling “rejected a narrow view of TCPA liability,” said the complaint. It includes the assertion that a seller’s liability “requires a finding of formal actual agency and immediate direction and control over third parties who place a telemarketing call,” it said. SPI’s third-party telemarketers “had actual and/or apparent authority to act” on SPI’s behalf, it said. “SPI also ratified its agents’ violations of the TCPA by accepting leads and deriving profit from sales imitated by unlawful telemarketing calls,” it said. SPI controlled or had the right to control the marketing activities of those acting on its behalf, it said. SPI isn’t permitted under the law “to outsource and contract its way out of liability by directing and benefitting from its agents’ TCPA violations,” it said.

Timothy Aguilar has now received more than 1,000 illegal “robo/nuisance, spoofed, artificial bot voice telemarketing calls,” up from more than 700 in October, said his amended Telephone Consumer Protection Act complaint Wednesday (docket 4:23-cv-03988) in U.S. District Court for Southern Texas in Houston. Aguilar's number has been listed on the national do not call registry since about 2011, it said. The case evolves from a campaign by Network Insurance Senior Health Division (NISHD) and Berken Media to market their services through pre-recorded and “spoofed” telemarketing calls “in plain violation of the TCPA.” Bandwidth, Peerless Networks and Onvoy have “initiated and or facilitated” the calls with their VoIP call services technology “to further NISHD’s and Berken’s telemarketing onslaught of robocalls” to Aguilar “on a consistent & daily basis,” said the pro se plaintiff. “A percentage” of the spoofed robocalls placed to Aguilar’s cellphone number on behalf of Berken Media and NISHD have the same or similar “marketing phone script” and prerecorded messages attributable to Berken and NISHD, with the “supporting role of the calling platforms of Onvoy, Bandwidth and Peerless,” the complaint said. The Pasadena, Texas, resident has been “harassed, cussed at" and victimized by the robocalls that solicited car warranties, medical and diabetic services, final expense services, home solar products and accident claim legal services, alleges the complaint. The amended complaint identified Berken as responsible for prerecorded robocalls for accident claim legal services. Aguilar has recorded many of the robocalls, he said. The plaintiff added a claim in the amended complaint, bringing the number of counts to five, for calls made to his cellphone using an artificial or prerecorded voice. Other claims are violations of the TCPA for using an automatic telephone dialing system and for calling a number on the national DNC list, violation of the Texas Business and Commercial Code and intentional infliction of emotional distress.

Plaintiff Shannan Davis voluntarily dismissed with prejudice her Telephone Consumer Protection Act claims against LifeMD because the parties “have resolved their dispute,” said her notice of dismissal Tuesday (docket 8:23-cv-02138) in U.S. District Court for Middle Florida in Tampa. Davis’ Sept. 21 class action had alleged that the telehealth company contributed to the nationwide “barrage” of phone spam by initiating more than 100 illegal text messages to her residential cellphone (see 2309220001).