Cherry Technologies, a payment plan company for managing dental patients’ out-of-pocket costs, sent unsolicited fax ads Dec. 11 to Kawa Orthodontics and at least 40 other recipients in violation of the Telephone Consumer Protection Act, alleged Kawa in a class action Wednesday (docket 9:24-cv-80005) in U.S. District Court for Southern Florida in West Palm Beach. The fax that Cherry sent, trumpeting how patients could take advantage of unused dental benefits that were expiring at the end of the year, was “a generic advertising template suitable for mass transmission to numerous recipients,” said the complaint. Kawa further alleges that Cherry has sent other unsolicited advertisements via fax transmission in violation of the TCPA “during the four years preceding the filing of this lawsuit,” it said. Kawa and members of the proposed class were harmed by being sent the fax because it violated their “statutory right to be free from unsolicited fax advertisements,” it said. Court records show Kawa's lawsuit against Cherry was the third TCPA class action it has filed since June 2021, all for unsolicited fax ads. Kawa voluntarily dismissed its TCPA claims against Northwell Health Labs last month (see 2312230003).

La-Z-Boy embarked on a telemarketing campaign to market its products and services by contacting numbers on the national do not call registry in “plain violation” of the Telephone Consumer Protection Act, alleged Little Rock resident Josh Sanford’s class action Tuesday (docket 5:24-cv-10005) in U.S. District Court for Eastern Michigan in Ann Arbor. It’s “simple” for companies to avoid calling numbers listed on the national DNC registry, said Sanford’s complaint. They can “easily and inexpensively” scrub their call lists against the registry’s database, it said. Regulations implementing the TCPA also require companies to maintain internal DNC registries, it said. It has “long been the law” that a seller of goods or services can be liable for TCPA violations even if the seller doesn’t directly place or initiate the calls, it said. Sanford listed his phone number on the national DNC registry in July 2009, said his complaint. He nevertheless received nine La-Z-Boy text message solicitations on five separate dates through Dec. 26, it said. La-Z-Boy, or someone acting on its behalf, violated Sanford’s privacy by making each of the unwanted telemarketing text messages, it said. The text messages “constitute a nuisance as they are annoying and harassing,” it said. Sanford never gave La-Z-Boy “authorization to market to him via text messages,” it said.

U.S. District Judge Julien Neals for New Jersey in Newark denied defendant Plymouth Rock’s motion to dismiss plaintiff Robert Clough’s Telephone Consumer Protection Act class action, said the judge’s signed order Friday (docket 2:21-cv-19343). Clough, a New Hampshire resident, alleges that Plymouth Rock, a New Jersey insurance company, hired a third-party vendor to place telemarketing calls promoting Plymouth Rock’s goods and services to phone numbers listed on the national do not call registry, said the order. Clough alleges receiving four such calls, it said. Plymouth Rock argues that he fails to allege sufficient facts to hold it vicariously liable for the calls placed by the vendor, “based on theories of actual authority, apparent authority, or ratification,” but the court disagrees, said the order. Clough’s allegations also are sufficient to state a claim that the vendor “had actual authority to promote Plymouth Rock’s goods and services through telemarketing calls when it made the alleged unlawful calls,” it said. Clough also sufficiently alleged that he didn’t consent to receive the calls, it said.

The “fundamental flaw” in plaintiff Gabriel Nater’s Oct. 27 class action alleging that he received a prerecorded call from State Farm without his prior express consent, in violation of the Telephone Consumer Protection Act, is that the insurance company didn’t place that call (see 2310300003), said State Farm’s memorandum of law Tuesday (docket 1:23-cv-01408) in U.S. District Court for Central Illinois in Peoria in support of its motion to dismiss Nater’s complaint. Nater’s allegations that State Farm made the call are “entirely conclusory,” said the memorandum. “No facts are alleged to support that assertion,” it added. To the contrary, the alleged facts suggest that the entity making the call was an "unnamed third-party lead generator,” it said. As such, Nater’s attempt to hold State Farm “directly liable” for the call fails, it said. Though a defendant, in some circumstances, “may be held vicariously liable under the TCPA for calls made by some third party on their behalf,” Nater’s complaint “makes no attempt to plead any such vicarious liability claim,” it said. The TCPA prohibition at issue here also applies “only to residential telephone lines, rather than business lines,” it said. Nater’s failure to allege that the called number is on a residential line “provides additional grounds for dismissal,” it said.

U.S. District Judge Thomas Barber for Middle Florida in Tampa scheduled a hearing for Jan. 29 at 1:30 p.m. on defendant AccuQuote’s Nov. 27 motion to dismiss plaintiff John Bryant’s first amended Telephone Consumer Protection Act complaint for lack of subject-matter jurisdiction and personal jurisdiction, or, in the alternative, for failure to state a claim, said the judge’s text-only order Tuesday (docket 8:23-cv-02171). Bryant alleges that AccuQuote, an insurance leads company, hired vendor Digital Media Solutions to place unsolicited telemarketing calls to Virginia phone numbers listed on the national do not call registry, and that it also violated provisions of the Virginia Telephone Privacy Protection Act (see 2309270006). AccuQuote’s motion to dismiss contends that Bryant’s amended complaint “tries to resuscitate claims” that were dismissed earlier in 2023 in an identical case in the Eastern District of Virginia.

Litigants filed 1,537 Telephone Consumer Protection Act cases in the federal courts in 2023, an 8.9% increase from the 1,411 TCPA cases filed in 2022 and a 8.5% increase from the 1,417 cases filed in 2021, court records show. The 2023 total was 5.1% less than the 1,619 TCPA cases filed in 2020, the records show.

Plaintiff Roger Lamb voluntarily dismissed without prejudice his Telephone Consumer Protection Act claims against the Clear Link Insurance Agency and its telemarketing vendor, Boss Leads Live, said Lamb’s notice Friday (docket 1:23-cv-03016) in U.S. District Court for Colorado in Denver. Lamb’s Nov. 15 class action alleged that the insurer hired the vendor to place telemarketing calls to him and his putative class members, despite not having the "requisite consent" to contact those individuals, whose numbers were listed on the national do not call registry.

American HomeSecures (AHS), in an “overzealous attempt” to market its smart home security services, willfully or knowingly made, and continues to make, unsolicited telemarketing phone calls to residential phones using an artificial or prerecorded message without the prior express written consent of the call recipients, and to numbers listed on the national do not call registry, alleged plaintiff Tiffany Harris’ Telephone Consumer Protection Act class action Friday (docket 3:23-cv-02884) in U.S. District Court for Northern Texas in Dallas. Harris alleges AHS hounded her with multiple telemarketing calls, including three on a single day, though her number had been listed on the national DNC registry since January 2022, said her complaint. As a result of the unlawful calls, Harris “experienced frustration, annoyance, irritation and a sense that her privacy had been invaded,” it said. AHS knew or should have known that it didn’t have prior express written consent to make the calls “and knew or should have known that it was using an artificial or prerecorded voice in violation of the TCPA,” it said.

Nelson Estrada denies the allegations in defendant Aragon Advertising’s Telephone Consumer Protection Act counterclaim that he’s a common law fraudster, said Estrada’s answer Wednesday (docket 4:23-cv-03407) in U.S. District Court for Southern Texas in Houston. The plaintiff’s Sept. 12 class action alleged that Aragon inundated his cellphone with 37 “unauthorized and illegal” solicitation calls, to a number listed on the national do not call registry since June 2008 (see 2312070040). Aragon alleged in its Dec. 6 counterclaim that Estrada is a budding professional TCPA litigant who shops lawsuits around different law firms, and that he faked interest in Aragon’s products and services just to drive up the call count to extract a higher settlement payout for his “manufactured TCPA claim.” Estrada’s answer asks the court to enter judgment in his favor and to dismiss Aragon’s counterclaim with prejudice.

Plaintiff Adrian Thomas fell behind on his Kohl’s credit card payments, only to be hounded by the retailer’s incessant debt collection calls beginning in October, said his Telephone Consumer Protection Act complaint Thursday (docket 1:23-cv-02312) in U.S. District Court for Southern Indiana in Indianapolis. The calls persisted despite Thomas’ demands that they stop, said the complaint. Kohl’s left multiple prerecorded voicemails on the Indiana resident’s cellphone without his consent, it said. The collection calls have invaded Thomas’ privacy and have caused him “actual harm,” including the “aggravation that accompanies unsolicited robocalls,” it said. Court records show that Thomas’ lawsuit is the 90th TCPA complaint filed against Kohl’s since May 2011.