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).

DriveTime Car Sales, an automobile dealership and finance company that caters to customers with poor credit records, inundated plaintiff Keesha Willis’ cellphone with solicitations after she was approved for a car purchase “with zero balance due,” but then informed the dealership she wasn’t going to move forward with the transaction, alleged her Telephone Consumer Protection Act complaint Friday (docket 1:23-cv-16094) in U.S. District Court for Northern Illinois in Chicago. Due to the “harassing and pervasive nature” of the phone calls, Willis demanded that DriveTime cease placing the calls, but it “disregarded” her multiple demands, said the complaint, which also alleges violations of the Illinois Consumer Fraud and Deceptive Business Practices Act. Willis has suffered “concrete harm” as a result of DriveTime’s actions, including invasion of her privacy and “aggravation” that accompanies unwanted phone solicitations, plus emotional distress and numerous violations “of her state and federally protected interests” to be free from DriveTime’s “harassing and abusive” conduct, it said. DriveTime’s use of prerecorded messages “brings its conduct within the ambit of the TCPA,” said her complaint. DriveTime continued placing phone calls to Willis’ cellphone “despite lacking the consent to make such calls,” as that consent was “withdrawn” through her conversations with the defendant, it said.

Clearlink Insurance hired vendors, including X-Telecom, to place telemarketing calls to plaintiff Daniel Costa and other putative class members, despite his number's listing on the national do not call registry, alleged Costa's Telephone Consumer Protection Act class action Thursday (docket 3:23-cv-05874) in U.S. District Court for South Carolina in Columbia. The South Carolina resident received scripted calls from X-Telecom on “at least” Oct. 30 and Nov. 1 asking about Medicare. To prepare him to be transferred to Clearlink, the agent asked Costa his age and ZIP code, it said. On the Nov. 1 call, he was transferred to a representative at Clearlink who promoted supplemental Medicare insurance, it said. Costa’s privacy was violated because he didn’t consent to receive the calls, he said. The plaintiff and the class have been harmed by the defendants' actions because “their privacy has been violated, they were annoyed and harassed,” the complaint said. Also, the calls occupied their phone lines, making them unavailable for “legitimate communication.” In addition to TCPA violations, Costa claims violation of the South Carolina Telephone Privacy Protection Act. He seeks statutory damages and a declaration that defendants violated the privacy laws.

LoanDepot didn’t “directly” violate the Telephone Consumer Protection Act, and plaintiff Kristi Hull “fails to allege a claim under any theory of vicarious liability,” said the mortgage lender’s answer Thursday (docket 1:23-cv-02567) in U.S. District Court for Colorado in Denver to Hull’s Oct. 2 complaint (see 2310030001). Court records show Hull’s complaint was the 28th TCPA action filed against loanDepot since May 2014. Hull alleges that loanDepot “incessantly” placed telemarketing calls to her cellphone, despite not having the “appropriate form of consent” to call her, and notwithstanding that her number was listed on the national do not call registry since August 2012. But Hull lacks Article III standing to bring her action because she didn’t suffer “an injury-in-fact as a result of loanDepot’s alleged conduct,” said loanDepot’s answer. The company said it didn’t willfully or knowingly contact Hull on the phone numbers at issue without prior express consent. LoanDepot said its actions “were proper and legal, and at all times it acted with good faith and without malice.” Application of the TCPA, as interpreted by the FCC, violates the First Amendment because such application relies on “content-based restrictions of protected speech,” said loanDepot’s answer. The statute also is unconstitutionally vague because TCPA restrictions don’t give “a person of ordinary intelligence adequate notice of the conduct that is prohibited,” said the lender. Any award of punitive or statutory damages against loanDepot would be unconstitutional “as violative” of the due process clause of the 14th Amendment and the excessive fines clause of the Eighth Amendment, it said. “The amount of damages prescribed by the TCPA statute are so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable,” loanDepot said. “Any award of damages should be reduced to comport with due process,” it said.

Montgomery, Texas, consumer Jerry Baldridge brought suit Wednesday against Great Western Insurance for Telephone Consumer Protection Act violations and “to protect his privacy rights, namely the right to be left alone from unwanted telemarketing phone calls,” according to his class action (docket 4:23-cv-04309) in U.S. District Court for Southern Texas in Houston. His lawsuit seeks to get telemarketers like Great Western “to stop incessantly calling his phone” and those of the putative class members’ phones despite not having given prior express consent to receive prerecorded or artificial voice calls, and despite having listed their numbers on the national do not call registry, said the class action. The TCPA’s private right of enforcement “is critical to stopping the proliferation of these unwanted telemarketing calls,” it added. Baldridge listed his number on the DNC registry since January 2006 “to obtain solitude from unwanted telemarketing calls,” said his complaint. Baldridge nevertheless received at least two calls from Great Western in December promoting its “final expense insurance” services to cover funeral and cremation costs, it said. If Great Western directly placed the calls at issue to Baldridge, it’s “directly liable” for those unlawful calls, it said. And if Great Western hired third-party telemarketers “currently unknown” to Baldridge to place those calls, the company 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.

U.S. District Judge Matthew Schelp for Eastern Missouri in St. Louis on Wednesday granted plaintiff Mark Bruder and defendant Charter Communications' joint Nov. 13 motion to stay Bruder’s Telephone Consumer Protection Act case, pending further order from the court, while the parties arbitrate Bruder’s claims, (docket 4:23-cv-01075). The parties are to submit a “joint status update” on the progress of arbitration by Feb. 12, and every two months thereafter, said the judge’s signed order. Bruder’s Aug. 25 complaint alleges that Charter and Spectrum send automated texts to individuals throughout the U.S. who should be on their internal do not text lists, and that they do so without obtaining consumers’ prior express written consent (see 2308250040).

Charter Communications seeks judgment on the pleadings, and the dismissal of plaintiff George Morris’ Telephone Consumer Protection Act complaint in its entirety, on grounds that the U.S. District Court for Northern Texas in Dallas lacks personal jurisdiction over Charter, said its motion Tuesday (docket 3:23-cv-01741). Morris’ Aug. 4 class action alleges Charter calls consumers nationally to promote its Spectrum TV and internet bundles, using prerecorded messages to people who didn’t provide their prior express written consent to receive them, or whose numbers are listed on the national do not call registry (see 2308040053). The court should grant Charter’s motion because Morris only “nebulously” alleges that some unidentified third party made prerecorded marketing calls to him in violation of the TCPA, said Charter’s memorandum of points and authorities in support of the motion. Morris’ vague allegation “fails to make even a prima facie case of either general or specific personal jurisdiction over Charter, which alone warrants dismissal,” it said.

Defendants Lightfoot Media and Power House Marketing, both lead generation businesses, “routinely violate” the Telephone Consumer Protection Act by delivering ad or marketing text messages to residential or cellphone numbers listed with the national do not call registry without the prior express invitation or permission, alleged plaintiff Kyle Roseboro’s class action Wednesday (docket 1:23-cv-15983) in U.S. District Court for Northern Illinois in Chicago. Roseboro listed his cellphone number with the DNC registry in July, yet beginning in August, “and continuing through the present on an intermittent basis,” the Waukegan, Illinois, resident received multiple text messages, from a rotating series of phone numbers, promoting energy efficiency rebates, alleged his complaint. Roseboro didn’t recognize the sender of the text messages, nor did he seek energy efficiency rebates, and didn’t previously interact with the websites “identified by the subject text messages,” it said. The plaintiff isn’t and wasn’t interested in the defendants’ services or marketing, the complaint said. NewViewPHM.com, one of the websites mentioned in the text messages, advertises energy-saving window upgrade quotes, the complaint said, and “fails to clearly identify any legal entity” responsible for the website, “relegating that information solely to a copyright notice associated with Power House.” The other websites referenced in the text messages don’t appear to identify any legal entity, “and instead list a variety of names and addresses, though their terms of service provide Lightfoot’s contact information and address,” the complaint said. Roseboro suffered “actual harm as a result of the text messages at issue” because he experienced an invasion of privacy, an intrusion into his life and a private nuisance, alleged his class action. The defendants knew, or should have known, that Roseboro listed his cellphone number with the DNC registry, it said. Based on the “pervasive nature” of the defendants’ “obfuscation of their identities,” Lightfoot and Power House “acted willfully and intentionally through their violations of the TCPA,” it said.

Plaintiff Shannan Davis is reminded of her "duty” under Local Rule 3.09(a) to immediately file a notice of settlement with the court of her Telephone Consumer Protection Act claims against telehealth company LifeMD after agreeing to resolve all or part of a civil action, even if the resolution is "contingent or unwritten," said U.S. District Judge Virginia Hernandez Covington for Middle Florida in Tampa in a text-only endorsed order Tuesday (docket 8:23-cv-02138). Davis’ notice of mediation Monday said the parties and mediator Gregory Holder have agreed to mediation on Jan. 8. However, as the parties “are actively working to finalize a settlement agreement to dispose of this matter in its entirety, the parties anticipate the mediation will likely become unnecessary,” according to the notice. Davis’ Sept. 21 class action alleges that LifeMD contributed to the national “barrage” of phone spam by initiating more than 100 illegal text messages to her residential cellphone (see 2309220001).

Plaintiff Ruhi Reimer voluntarily dismissed without prejudice his Telephone Consumer Protection Act claims against Lord & Taylor, according to his notice of dismissal Tuesday (docket 1:23-cv-00741) in U.S. District Court for Eastern Virginia in Alexandria. Reimer alleged in his June 7 class action that he gave Lord & Taylor his consent so he could receive the retailer’s promotional text messages, but couldn’t get the messages to stop once he revoked that consent (see 2306080039).