Exact Care Pharmacy asserts 15 affirmative defenses against plaintiff Brenda Everett’s Telephone Consumer Protection Act class action allegations that it sends prerecorded messages to individuals’ phone numbers without first obtaining their required express written consent (see 2310050003), said its answer Monday (docket 4:23-cv-01649) in U.S. District Court for Middle Pennsylvania in Williamsport. Everett’s claims fail because Exact Care “reasonably relied on the prior express consent obtained” from her June 29, said its answer. The calls referenced in her complaint deliver healthcare messages and aren’t telemarketing calls as defined by the TCPA, it said. Exact Care isn’t liable “to the extent the TCPA allows such calls” without the consent of the called party, it said. Everett’s claims also fail because Exact Care “has established and implemented, with due care, reasonable practices and procedures to effectively prevent violations of the TCPA,” it said. Exact Care isn’t liable for violating the TCPA because any alleged violation was the result of error and as part of its routine business practice under the standards outlined in the federal regulations, it said. “This safe harbor has been recognized by courts and the FCC,” it said.

Plaintiff Diana Mey’s Sept. 29 claims against Allstate for violating the Telephone Consumer Protection Act (see 2311060018) are barred in whole or in part because the TCPA is “unconstitutionally vague,” said Allstate’s answer Monday (docket 5:23-cv-00331) in U.S. District Court for Northern West Virginia in Wheeling. The TCPA’s application to Allstate would violate the due process provisions of the Fifth and 14th amendments, it said. The statutory-damages provisions of the TCPA also violate the safeguards guaranteed by the Fifth, Sixth, Eighth and 14th amendments, it said. That’s because they constitute “excessive fines and are grossly disproportionate to any actual harm” that Mey may have suffered, it said. A pro se plaintiff, Mey alleges Allstate hounded her with at least 17 solicitation calls to her residential cellphone between October 2019 and October 2020. Mey asserts she never gave Allstate or its agents “express written consent” to call her.

Plaintiff Danuel Cortez voluntarily dismissed his individual Telephone Consumer Protection Act claim against Pizza Hut with prejudice, said his notice Monday (docket 2:23-cv-00192) in U.S. District Court for Eastern Washington in Spokane. Cortez’s July 5 class action alleged that Pizza Hut engages in unsolicited text messaging to promote its goods and services and that it continues to text consumers after they opt out of those solicitations (see 2307070022).

Talkatoo, a supplier of dictation software for medical professionals, removed to U.S. District Court for Northern Illinois in Chicago Monday a Telephone Consumer Protection Act class action filed Oct. 26 in Cook County Circuit Court in which the Animal Medical Center of Orland Park alleges it received at least four unsolicited faxes between Aug. 3 and Sept. 26 promoting Talkatoo goods and services. Talkatoo intends no admission of fact, law, liability or damages, and reserves all defenses, affirmative defenses, objections and motions, said its notice of removal (docket 1:23-cv-16265). Discovery “may reveal the transmission of additional faxes as well,” said the clinic’s complaint, which also alleges violations of the Illinois Consumer Fraud Act. Unsolicited fax advertising “damages the recipients,” said the complaint. The recipient “is deprived of its paper and ink or toner and the use of its fax machine,” it said. The recipient also “wastes valuable time it would have spent on something else,” it said. Unsolicited faxes “prevent fax machines from receiving and sending authorized faxes,” cause wear and tear on fax machines, and “require labor to attempt to identify the source and purpose of the unsolicited faxes,” it said. Unsolicited fax advertising “is contrary to the TCPA and also Illinois law,” which makes it “a petty offense to transmit unsolicited fax advertisements to Illinois residents,” it said. Talkatoo “engaged in an unfair practice and an unfair method of competition by engaging in conduct that is contrary to public policy, unscrupulous, and caused injury to recipients of their advertising,” it said. Talkatoo gained “an unfair competitive advantage over businesses that advertise lawfully, such as by direct mail,” it said. An ad campaign targeting a million recipients would cost $500,000 if sent by U.S. mail, “but only $20,000 if done by fax broadcasting,” it said. “Instead of spending $480,000 on printing and mailing his ad, the fax broadcaster misappropriates the recipients’ paper and ink,” it said.

Plaintiff Marc Calamaras voluntarily dismissed his individual Telephone Consumer Protection Act class actions against Re/Max with prejudice, said his notice Monday (docket 8:23-cv-01733) in U.S. District Court for Middle Florida in Tampa. The TCPA claims are dismissed without prejudice to any other alleged putative class member, said the notice. Each party will bear its own costs and fees, it said. Calamaras alleged Re/Max sent him at least 10 unwanted promotional texts to a number listed on the national do not call registry since June 2006 (see 2308040004).

Johnson & Wales University, or “someone acting on its behalf and at its direction,” makes prerecorded telemarketing calls to promote its degree programs, and does so without prior express written consent, alleged plaintiff Lawrence Wright’s Telephone Consumer Protection Act class action Nov. 22 (docket 3:23-cv-01941) in U.S. District Court for Middle Pennsylvania in Scranton. Wright listed his residential cellphone number May 18 on the national do not call registry, yet he started receiving Johnson & Wales telemarketing solicitations June 27, said his complaint. He estimates receiving at least five such solicitations through July 11, it said. Wright knew the calls were prerecorded because “they were all identical,” it said. Wright never gave the school consent to call him, “written or otherwise,” it said. He has suffered “concrete harm” due to the university’s “unwanted and unsolicited” telemarketing calls, including lost time tending to the calls and voicemail messages, plus invasion of privacy and the “nuisance” nature of the calls, it said: “These forms of actual injury are sufficient for Article III standing purposes."

Plaintiff Marvin Shebroe brought suit against Bench Craft, a seller of golf course advertising to businesses throughout the U.S., to stop it from violating the Telephone Consumer Protection Act, said his class action Friday (docket 8:23-cv-02690) in U.S. District Court for Middle Florida in Tampa. Operating from three regional offices in Florida, Bench Craft makes telemarketing calls to consumers without consent, including to phone numbers listed on the national do not call registry, said the complaint. Shebroe, a Sarasota, Florida resident, seeks injunctive and monetary relief for all persons injured by Bench Craft’s conduct, it said. Current and former Bench Craft employees “have posted complaints online about the cold calls they were instructed to make to solicit business,” including some who claimed they placed as many as 500 cold calls per day, it said. Shebroe listed his residential cellphone number on the national DNC registry in August 2003, the class action said. Still, he received “multiple unsolicited, unwanted calls” from Bench Craft despite his many “stop” requests, said his class action.

The Plaza Auto Mall car dealership hounded plaintiff Christopher Bombardiere for months by sending “dozens” of text message solicitations advertising deals to his cellphone, despite his number having been listed on the national do not call registry since January 2015, alleged his Telephone Consumer Protection Act class action Nov. 20 (docket 1:23-cv-08609) in U.S. District Court for Eastern New York in Brooklyn. Bombardiere repeatedly asked the Brooklyn dealership to stop texting him, but the texts continued “over and over again,” said the complaint. Plaza left him “no choice but to file this lawsuit to prevent further harassment,” it said. Plaza failed “to establish and implement reasonable practices and procedures to effectively prevent telephone solicitations” in violation of the TCPA, it said. Plaza also doesn’t maintain a written policy, available on demand, for maintaining an internal DNC list, as the TCPA requires, nor does it properly train employees or agents engaged in telemarketing on the existence and use of an internal DNC list, as the statute also requires, it said. Bombardiere “properly alleges injuries in fact, which are fairly traceable” to Plaza’s unlawful acts, “and are likely to be redressed by a favorable judicial decision,” it said. Receiving the unwanted telemarketing texts "resembles the kind of harm associated with intrusion upon seclusion,” it said. Bombardiere has reason to believe that Plaza has called or texted “thousands” of wireless customers to market its products and services without consent, or after consumers revoked their consent in “a reasonable manner,” it said.

Moxie Robot, a Pasadena, California, company, delivered at least six promotional text messages to Ethan Radvansky's residential cellphone after he had listed his number on the national do not call registry April 18, he alleged in his Telephone Consumer Protection Act class action Tuesday (docket 3:23-cv-00224) in U.S. District Court for Northern Georgia in Newnan. The company bills itself as the supplier of the first AI conversational learning robot for kids younger than 10. The text messages were intended for someone other than Radvansky, and was a person unknown to him, said his complaint. The Haralson County, Georgia, plaintiff didn’t give the company prior express consent or permission to deliver its marketing text messages to his cellphone number, nor had he requested information or promotional materials from Moxie Robot, it said. The text messages harmed Radvansky “in that he suffered an invasion of privacy, an intrusion into his life, and a private nuisance,” the complaint said.

U.S. District Judge John Holcomb for Central California in Santa Ana used a 37-minute hearing Friday to deny defendant LendingTree’s motion to dismiss plaintiff Paul Sapan’s Telephone Consumer Protection Act complaint, said his order (docket 8:23-cv-00071). Sapan alleges that LendingTree and its agents don’t check the federal do not call registry before making cold calls to consumers to sell its financial services (see 2301170071). LendingTree’s unsuccessful motion to dismiss asserted that the Santa Ana court lacks personal jurisdiction over LendingTree, plus that Sapan premises his action on the mistaken belief that he received unwanted phone calls from individuals or entities acting on LendingTree’s behalf (see 2304100040).