There’s no such thing as a random or sequential telephone number generator, so how then can the district court hold that the Telephone Consumer Protection Act “requires the use of non-existent technology?” So posed plaintiff-appellant Andrew Perrong’s reply brief Friday at the 3rd U.S. Circuit Court of Appeals, seeking reversal of the district court’s dismissal of his TCPA complaint and the reinstatement of his lawsuit against the Democratic Committee of Montgomery County, Pennsylvania, and its sister organization, Montco Victory. The defendants’ position on the “straightforward definition” of an automatic telephone dialing system is wrong, said Perrong’s reply. The 3rd Circuit should decline the defendants’ “invitation to delve into syntax analysis and apply the law as written and as alleged,” it said. The case involves calls that were placed using a random or sequential number generator to store telephone numbers, and subsequently produce those telephone numbers from storage to be called by the dialing application, it said. The defendants don’t address that U.S. District Court for Eastern Pennsylvania “created a new piece of technology,” it said. Its holding “ignores the plain language” of the TCPA, it said. “Technology that randomly or sequentially generates telephone numbers has never existed nor has ever been used in any of the robocalls Americans find so detestable,” said Perrong’s reply. The 3rd Circuit “must refrain from being trapped into a syntax and grammatical analysis of a statute that needs no such analysis,” it said. The TCPA “requires the simple allegation” that a random or sequential number generator was used to place the call, it said. The terms “random number generator” and “sequential number generator” have precise, commonly accepted meanings within the technical community, it said. In interpreting the TCPA, the 3rd Circuit “must begin and end with this precise technical meaning,” it said.

Yazmin Gonzalez filed suit Friday in U.S. District Court for Western Texas in El Paso to thwart the “barrage of illegal telemarketing calls” she began receiving in September from Countrywide Legal Group to promote its debt relief services. The pro se plaintiff “seeks redress” under the Telephone Consumer Protection Act and Texas Business and Commerce Code (TBCC), “demanding that the calls stop,” said her complaint (docket 3:23-cv-00436). Gonzalez estimates she received at least 27 calls from Countrywide between Sept. 13 and Nov. 11, to a number she listed on the national do not call registry Feb. 15, it said. Countrywide’s telemarketers initiated the “numerous unsolicited telephone calls,” despite the El Paso resident repeatedly telling them she wasn’t interested in their services and to stop calling her, it said. The TBCC requires sellers to obtain a registration certificate from the secretary of state authorizing those sellers to make phone solicitations within the state of Texas or to residents located within Texas, it said. The TBCC provides consumers with a private right of action to seek damages up to $5,000 per violation, compared with treble damages of up to $1,500 for each knowing or willful TCPA violation, said the complaint. An online database shows that Countrywide doesn’t own a valid telemarketing registration or certificate as the TBCC requires, said the complaint.

Rocket Mortgage seeks reconsideration of the portion of U.S. District Judge Kay Behm’s Nov. 17 order denying its motion to compel plaintiff Michael Dahdah’s Telephone Consumer Protection Act claims to arbitration (see 2311200003), said Rocket’s motion Friday (docket 4:22-cv-11863) in U.S. District Court for Eastern Michigan in Flint. There are two “clear grounds” to reconsider the denial of Rocket’s motion to compel, said a memorandum of law in support of the motion. First, the denial rests on a mistake about the factual record and certain applicable case law, it said. Second, the denial rests on an error of law under the Federal Arbitration Act and binding 6th Circuit precedent, it said. Under those authorities, the court was required to direct the parties to proceed to a limited trial to resolve any factual disputes on whether Dahdah agreed to arbitrate, it said. Each of these mistakes and errors was “outcome determinative,” it said. Correcting them demonstrates that the motion to compel “either should have been granted or, at the very least, its resolution deferred pending the outcome of the limited trial,” it said.

The plaintiffs’ Nov. 6 opposition to the Oct. 23 motion of defendant MarketPro Homebuyers to dismiss their Telephone Consumer Protection Act class action “seeks to stretch the statutory text of the TCPA” to cover conduct that the statute doesn’t and never was intended to prohibit, said MarketPro’s reply Wednesday (docket 1:23-cv-02364) in U.S. District Court for Maryland in Baltimore in support of its motion to dismiss. Plaintiffs Erin Wilcox and Connie Slingbaum allege that MarketPro, a real estate marketing company and lead generation business, 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” (see 2308300002). But the plaintiffs can’t dispute that the actual texts at issue don’t offer “to sell any goods or services by their plain language,” MarketPro’s reply said. To avoid the “obvious resulting conclusion,” that the texts aren’t telephone solicitations under the TCPA, the plaintiffs instead try to frame MarketPro’s business model as taking advantage of a “loophole” in the TCPA, said the reply. MarketPro isn’t exploiting any loophole, it said. The messages at issue aren’t prohibited “based on the clear language of the TCPA,” it said. Congress enacted a “plain and unambiguous” statute to target phone calls and text messages sent for the unsolicited sale of goods and services, said the reply. “The texts here do not fall within that statute” because they sought to buy real estate from the plaintiffs, not sell goods or services, it said. Rather than accept the statute that Congress enacted, the plaintiffs ask the court to “wholly rewrite it” and adopt “far broader definitions” of telemarketing and phone solicitations than Congress intended, said the reply. Under their “rewrite,” the statute would require an analysis “of whether the sender’s business model could be viewed as offering any marginal benefit to the message recipient,” it said. But that’s not “relevant” in determining whether a message is telemarketing or a phone solicitation, said the reply. There’s no legislative history to support the plaintiffs’ “overbroad definition,” it said. Lacking that textual or legislative history, the plaintiffs instead wrongly base their arguments on their beliefs as to the “spirit” of the TCPA, it said. Courts have previously held that the TCPA’s “remedial purpose” doesn’t justify reading a provision more broadly than its language and the statutory scheme reasonably permit, it said. The plaintiffs ignore recent court decisions “expressly rejecting the same attempt to classify MarketPro’s text messages as telemarketing,” said the reply. They instead rely on certain cases that were not only wrongly decided, “but also involved a company with a different business model and text messages,” it said. The court isn’t bound to follow those “outlier” decisions “to the extent they are inconsistent with the TCPA’s statutory language,” the reply said. The plaintiffs can’t allege conduct by MarketPro that violates the TCPA, and so the court should dismiss their complaint with prejudice, it said.

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 (DCSA), alleged plaintiff Victoria Roehrman’s class action Thursday (docket 1:23-cv-02146) in U.S. District Court for Southern Indiana in Indianapolis. McAfee also unlawfully sends texts to numbers listed on the national do not call registry, said her complaint. McAfee’s conduct runs counter to the DCSA because the texts falsely led the Brownsburg, Indiana, resident to believe that her phone was infected with a virus or usage may be compromised “when that was untrue,” it said. That attempt to “coerce” her and “instill fear” was unfair, deceptive and “unconscionable,” it said. Roehrman listed her cellphone number on the national DNC registry in July 2004 “to obtain privacy and solitude from invasive and harassing telemarketing calls and text messages,” said her complaint. But that didn’t stop McAfee from sending her a “litany” of telemarketing text messages to promote and sell its antivirus software, it said. Roehrman estimates that McAfee sent her nearly two dozen text messages, though she never sought information about McAfee’s products, nor did she engage “in any communications or otherwise do business with McAfee,” it said. Some texts falsely claimed Roehrman had received a refund or won a prize before redirecting her to the McAfee ordering page on the McAfee website, it said.

Spectrum is “engaged in a scheme” to sell cable and internet services via prerecorded and live cold calls to residential phone numbers on the protected federal do not call registry, alleged plaintiff Trane Charman’s Telephone Consumer Protection Act class action Wednesday (docket 3:23-cv-02184) in U.S. District Court for Southern California in San Diego. The TCPA gives “victims of junk calls a private right of action to sue for the intrusion on their privacy,” it said. Spectrum and its agents don’t check the DNC registry before making their illegal calls, nor do they engage in any DNC registry compliance, it said. Spectrum and its agents also make prerecorded telemarketing calls without prior express written consent, it said. These cold calls are made to “massive lists” of phone numbers in the U.S. with “no regard” for whether these numbers are listed on the national DNC registry or not, it said. Spectrum “has intentionally violated the TCPA in a so-far successful attempt” to sell its services for years, it said.

Plaintiff Jenice Clouse began receiving calls on her cellphone from loanDepot in June, attempting to reach a person named Elizabeth to solicit her to apply for a home mortgage loan, alleged Clouse’s Telephone Consumer Protection Act complaint Wednesday (docket 8:23-cv-02720) in U.S. District Court for Middle Florida in Tampa. Clouse doesn’t know anyone named Elizabeth, nor did she know why loanDepot was calling her, it said. She wasn’t interested in its services, hadn’t provided her information to loanDepot, and certainly didn’t consent to receive its phone “regarding its purported loan offerings,” the complaint said. Clouse has “explicitly demanded” that loanDepot stop contacting her and that she isn’t interested in its services, said the complaint. Yet loanDepot “continued placing phone calls and delivering prerecorded messages” to Clouse, “attempting to solicit her to sign up for services she did not want,” it said. LoanDepot has continued to regularly call Clouse’s cellphone using prerecorded messages “up until the date of the filing of this action,” it said. Her complaint also alleges violations of the Florida Telephone Solicitation Act, which “prohibits any person from placing a telephonic sales call that plays a recorded message when a connection is complete to a number called without the prior express written consent of the called party.” Clouse has suffered concrete harm as a result of loanDepot’s actions, including invasion of privacy, aggravation, emotional distress and “numerous violations of her federally and state-protected interests to be free from repeated and unwanted solicitation efforts,” it said. Court records show that Clouse’s complaint is the 30th TCPA lawsuit filed against loanDepot since March 2014.

U.S. District Judge William Dimitrouleas for Southern Florida in Fort Lauderdale gave plaintiff Kawa Orthodontics until Dec. 5 to either move for a clerk’s entry of default against defendant Northwell Health Labs or show cause why its complaint against Northwell shouldn’t be dismissed for lack of prosecution, said his signed order Tuesday (docket 9:23-cv-81424). A failure to comply “may result in immediate dismissal of this case without prejudice,” said the order. Kawa sued Northwell Oct. 26 in a Telephone Consumer Protection Act class action to halt its practice of sending unsolicited fax advertisements promoting its lab services to unhappy recipients (see 2310270005). Northwell was properly served with the complaint Oct. 27 but missed its Nov. 17 deadline to file an answer or otherwise respond, and still hadn’t done so as of Tuesday’s order, said the judge. Though Northwell failed to timely respond to the complaint, Kawa hasn’t yet moved for a clerk’s entry of default, said the order.

DoorDash inundated Sharbell Karout with “constant calls” to his cellphone after he sold his gas station in 2021, though he never previously partnered with DoorDash for deliveries and never gave DoorDash his cellphone number, alleged Karout’s Telephone Consumer Protection Act class action Tuesday (docket 3:23-cv-06148) in U.S. District Court for Northern California in San Francisco. Karout estimates he received hundreds of DoorDash calls throughout 2022 and 2023 featuring the same prerecorded message over and over again, including more than 20 calls in a single day, said his complaint. Karout has repeatedly tried to block the phone numbers generating those calls but has been unsuccessful because whenever he blocks a particular number, DoorDash continues to call from new numbers, it said. The California resident has spoken to multiple DoorDash supervisors, who have repeatedly assured him that they would fix the problem, the complaint said. Despite those assurances, he continues to receive “bothersome and harassing calls” to his cellphone every day, featuring the same prerecorded message, it said. The calls violate the TCPA because they aren’t made for emergency purposes or with Karout’s prior express consent, and they use a prerecorded voice to call a number that Karout has had listed on the national do not call registry since 2007, said the complaint. Court records show that Karout’s class action is the 10th TCPA lawsuit filed against DoorDash since March 2017.

Plaintiff Jacob Howard is appealing to the 9th U.S. Circuit Court of Appeals the final judgment entered Nov. 6 that granted the Republican National Committee’s motion to dismiss his Telephone Consumer Protection Act class action (see 2311150003), said his notice of appeal Tuesday (docket 2:23-cv-00993) in U.S. District Court for Arizona in Phoenix. Howard alleges the RNC sent him unsolicited text messages with video files that downloaded automatically to his phone and contained artificial or prerecorded voices, in violation of the TCPA. But U.S. District Judge Steven Logan held that the text messages weren’t actionable under the TCPA because the downloaded videos didn’t automatically begin playing. The messages therefore “provided a conscious choice of whether to engage with the audible component” of the downloaded video, but that was different “from what the TCPA intended” by barring calls using a prerecorded voice, said his order.