Class-action plaintiff Sarah Meraz voluntarily dismissed without prejudice her Telephone Consumer Protection Act claims against Post University, said her Oct. 27 notice (docket 6:23-cv-01149), posted Monday in U.S. District Court for Western Louisiana in Lafayette. Meraz alleged in her Aug. 24 class action that the Waterbury, Connecticut, school inundated her with multiple prerecorded voice message calls to her cellphone to promote its online degree programs (see 2308240043).

Allied Capital Services, a business finance firm specializing in government grants, sent multiple telemarketing text messages promoting COVID-19 employee retention credit relief grants under the 2020 Cares Act to Tiffany Harris’ cellphone between October and December 2022, though her number has been listed on the national do not call registry since January 2022, alleged her Telephone Consumer Protection Act class action Tuesday (docket 1:23-cv-08284) in U.S. District Court for Eastern New York in Brooklyn. The Alabama plaintiff alleges that Allied “failed to establish and implement reasonable practices and procedures to effectively prevent telephone solicitations” in violation of the TCPA. Allied also ignored her demands to stop, continuing to transmit unsolicited text messages to her cellphone, said her complaint. Harris alleges Allied doesn’t maintain a written policy, available on demand, for maintaining an internal DNC list, nor does it train its telemarketing employees or agents on the existence and use of any DNC list, as the TCPA requires, it said. She “properly alleges” injuries in fact, which are “fairly traceable” to Allied’s “unlawful acts,” and are “likely to be redressed by a favorable judicial decision,” said her class action: “Among other harms caused by the unlawful telemarketing text messages at issue, receiving the unwanted telemarketing resembles the kind of harm associated with intrusion upon seclusion.”

Brident Dental Services denies “each and every allegation” in plaintiff Radley Bradford’s Sept. 15 Telephone Consumer Protection Act class action that it sends consumers persistent telemarketing text messages even after they opt out of receiving them (see 2309180003), said Brident’s answer Monday (docket 4:23-cv-03460) in U.S. District Court for Southern Texas in Houston. Bradford has failed to state any TCPA claim against Brident “for which relief can be granted,” it said. The claims also may be barred due to the plaintiff’s failure “to mitigate his damages,” or through his own “contributory negligence,” Brident said. He also has suffered no concrete harm “as a result of any alleged act or omission of Brident,” it said. “With respect to any damages proven to have been suffered” by Bradford as alleged in the complaint, “which Brident wholly denies,” such damages “have been and will be proximately caused, in whole or in part, by the acts or omissions of persons other than Brident over whom it had no control and for whose conduct it is not responsible,” said the defendant. That “bars or diminishes any recovery” that Bradford could make against Brident, it said. To the extent that any or all the plaintiff’s claims “are subject to arbitration in accordance with the terms and conditions of any account,” Brident reserves the right to compel arbitration under those terms and conditions, it said.

Allstate denies it engages in widespread unsolicited telemarketing to promote the sale of its insurance products, said its answer Monday (docket 1:23-cv-04385) in U.S. District Court for Northern Illinois in Chicago to the second amended Telephone Consumer Protection Act class action filed Oct. 23 by Joseph Bond of Georgia and Tonia Jewell-Vines of Maryland. The plaintiffs allege Allstate hires insurance agents across the country to conduct telemarketing on its behalf, and authorizes those insurance agents to place telemarketing calls, including prerecorded calls and calls to numbers listed on the national do not call list. But Allstate responds that those thousands of Allstate agents are independent contractors, and Allstate can’t respond on behalf of all of them, said its answer. The plaintiffs’ claims “are barred in whole or in part because, as applied to this case, the TCPA is unconstitutionally vague,” and their application to Allstate would violate the due process provisions of the Fifth and 14th Amendments, it said. The TCPA's statutory-damages provisions also violate the “safeguards guaranteed” by the Fifth, Sixth, Eighth and 14th Amendments “because they constitute excessive fines and are grossly disproportionate to any actual harm that may be suffered” by the plaintiffs, it said.

Plaintiff Robert Reil listed his residential cellphone number on the national do not call registry Aug. 17, yet he received at least three solicitation calls from Ensure Health Group on Sept. 28, alleged Reil’s Telephone Consumer Protection Act class action Monday (docket 3:23-cv-01167) in U.S. District Court for Middle Tennessee in Nashville. Reil never consented to receive the calls, which were placed to him for telemarketing purposes, said his complaint. “Because telemarketing campaigns generally place calls to thousands or even millions of potential customers en masse,” the Tennessee resident brought the action on behalf of a proposed nationwide class of other people who received illegal telemarketing calls from or on behalf of Ensure, it said. Reil and the other call recipients were harmed by these calls, it said. “They were temporarily deprived of legitimate use of their phones because their phone lines were tied up during the telemarketing calls and their privacy was improperly invaded,” it said. Ensure’s TCPA violations “were negligent, willful, or knowing,” it said.

Allstate removed to U.S. District Court for Northern West Virginia in Wheeling Friday a Telephone Consumer Protection Act complaint (docket 5:23-cv-00331) Diana Mey filed Sept. 29 in an Ohio County, West Virginia, state court in which the pro se plaintiff alleges the insurer hounded her with at least 17 solicitation calls to her residential cellphone between October 2019 and October 2020. Mey never gave Allstate or its agents “express written consent” to call her, “nor does she have an established business relationship with any of them,” said her complaint. Mey “was harmed by these calls,” it said. She was “temporarily deprived of legitimate use” of her phone, and her privacy “was improperly invaded,” it said. The calls also injured Mey “because they were frustrating, annoying, were a nuisance” and disturbed her “solitude,” it said. Court records since June 2019 show roughly two dozen suits in federal court against Allstate for alleged TCPA violations.

Plaintiff Paul Sapan’s Oct. 27 opposition to LendingTree’s Sept. 8 motion to dismiss Sapan’s first amended Telephone Consumer Protection Act complaint “underscores his failure to adequately plead the existence of an agency relationship,” said LendingTree’s reply Friday (docket 8:23-cv-00071) in U.S. District Court for Central California in Santa Ana. Sapan alleges that LendingTree made multiple calls to him in California using LendingTree’s agents or persons hired on its behalf to initiate the call before LendingTree direct employees come on the line. But Sapan’s allegations are “significantly less substantial” than those at issue in previous case law when the plaintiffs “pled the identities of the alleged callers with certainty,” said the reply. Here, Sapan simply doesn’t know who called him, and neither his amended complaint nor the opposition “fill that informational gap,” it said. Sapan’s amended complaint “fails to articulate a single agency theory,” and it fails “to supply details sufficient to elevate his claim above speculation,” it said. Considering that Sapan “had a full and fair opportunity to conduct discovery on this issue,” one must wonder why he didn’t allege the existence of any contracts or communications between LendingTree and its alleged agents, it said. “Under these circumstances, the absence of such allegations is damning,” it said. Sapan alleges that to the extent LendingTree uses any agents to make calls, LendingTree knew or reasonably should have known that its agents were making the illegal calls. But that allegation “is problematic for several reasons,” said LendingTree’s reply. What LendingTree knew or reasonably should have known “has no bearing on the existence of apparent authority,” it said. A party also doesn’t sufficiently allege a theory of liability “merely by enclosing it in parentheses in a paragraph of the complaint where that theory is otherwise out of place,” it said. Sapan must allege some representation by LendingTree to Sapan “to adequately plead apparent authority,” it said. The amended complaint “contains no such allegations,” it said. For that reason alone, Sapan’s “argument on this point fails,” it said.

Millennia Tax Relief negligently, knowingly and willfully transmitted unsolicited, autodialed calls using an artificial or prerecorded voice to the cellphones of plaintiff Dawn Costa and her putative class members without consent, in violation of the Telephone Consumer Protection Act, alleged Costa’s class action Thursday (docket 2:23-cv-09232) in U.S. District Court for Central California in Los Angeles. Millennia’s unlawful conduct “is exactly the type of telephonic contact the TCPA was designed to prevent,” said Costa’s complaint. The company didn’t “maintain procedures reasonably adapted to avoid any such specific violation,” it said. Costa was “confused, frustrated and annoyed” as to why Millennia was calling her when she had never given the company her contact information, it said. She alleges she suffered “an invasion of a legally protected interest in privacy, which is specifically addressed and protected by the TCPA,” said her complaint. Millennia’s calls and voicemails forced Costa and her “similarly situated” class members “to live without significant memory space” on their cellphones by “occupying” their devices with multiple unwanted messages, “causing nuisance and lost time,” it said.

The U.S. District Court for Eastern Pennsylvania in Philadelphia was correct in its July 18 decision granting the motion of defendant Montgomery County Democratic Committee, a political action committee, to dismiss plaintiff Andrew Perrong’s amended Telephone Consumer Protection Act complaint with prejudice for failure to state a claim, said the committee’s appellee brief Thursday (docket 23-2415) in the 3rd U.S. Circuit Court of Appeals. The district court correctly held that an automatic telephone dialing system isn’t used in violation of TCPA “when calling all phone numbers on a previously compiled list, whether randomly or sequentially,” so long as the numbers on the list weren’t “themselves generated randomly or sequentially,” said the committee’s brief. Should the 3rd Circuit determine that the district court’s holding was incorrect, the district court’s dismissal should still be upheld on the “alternative ground” that the amended complaint fails to adequately allege that the committee placed the three alleged calls to Perrong to promote Democratic candidates, it said.

Meghani World is taking off the gloves in its fight to defeat plaintiff Marquelle Vinson’s Telephone Consumer Protection Act class action allegations that the online luxury watch retailer engages in unlawful unsolicited text-messaging and continues to text-message consumers after they opt out of its solicitations (see 2308310012). Vinson has failed to state a cause of action on which relief may be granted, and Meghani is entitled to a dismissal of her claims, said its answer Thursday (docket 3:23-cv-01938) in U.S. District Court for Northern Texas in Dallas. Vinson’s complaint also violates Federal Rule of Civil Procedure 11, said its answer. Rule 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support. Vinson's Rule 11 violation occurred because she had “no good faith belief based on a reasonable inquiry that there are any other persons or entities who would belong to the class” that she seeks to establish, said Meghani’s answer. Vinson “knows or should know that she knows of only one person similarly situated,” and that’s Vinson herself, it said. It appears that Vinson filed her suit “with no knowledge or information to support a belief that there were indeed others who would belong to a class” under Federal Rule of Civil Procedure 23, it said. It also “appears clear” that Vinson planned on filing suit, “and then seeking discovery from Meghani to see if there are any other potential class members, with no good faith belief that there were indeed any other class members,” said Meghani’s answer. Vinson violated Rule 11(b) by filing her suit for “an improper purpose,” said its answer. That purpose was “to harass, cause unnecessary delay, or needlessly increase the cost of litigation,” it said. She did so by seeking class action certification when she knows or should know that as of the filing of her suit, she knows “of no other prospective class members,” said Meghani.