Boca Raton, Florida-based Kawa Orthodontics filed a Telephone Consumer Protection Act suit Thursday to challenge the practice of four Northwell Health subsidiaries of sending unsolicited fax advertisements promoting their lab services to unhappy recipients, said Kawa’s class action (docket 9:23-cv-81424) in U.S. District Court for Southern Florida in West Palm Beach. Kawa alleges receiving a single Northwell fax ad Sept. 18 but asserts the fax it received “is a generic advertising template suitable for mass transmission to numerous recipients.” On that basis, Kawa alleges that the defendants, or persons or entities acting on their behalf, violated the TCPA by sending the same fax ad to members of the proposed class, it said. Because the TCPA’s Section 227(b)(3) creates a private right of action for those to whom unsolicited fax advertisements are sent, “the statutory rights conferred by the TCPA are violated upon the sending of the unsolicited fax advertisement regardless of whether the fax is ultimately reviewed by an actual person,” it said. The unsolicited fax ads violate Kawa’s and class members’ “right to privacy and interest in seclusion,” plus they’re a nuisance and they “interfere with interstate commerce,” alleged the class action. The unsolicited fax ads also cause harm in that they “occupy fax lines, prevent fax machines from receiving authorized faxes and prevent their use for authorized outgoing faxes,” it said. They also cause “undue wear and tear on the recipients’ fax machines,” and require “additional labor and effort to attempt to discern the source and purpose of the unsolicited message,” it said. The action seeks relief “expressly authorized by the TCPA,” including an award of statutory damages of at least $500 for each TCPA violation, “and to have such damages trebled,” under the TCPA’s Section 227(b)(3), “in the event willfulness in violating the TCPA is shown.”

UnitedHealthcare “denies any implication” that it violated the Telephone Consumer Protection Act, said the insurer’s answer Wednesday (docket 5:23-cv-00522) in U.S. District Court for Middle Florida in Ocala to plaintiff Elaine Johnson’s Oct. 11 amended class action. Johnson alleges UHC “routinely violates” the TCPA by using an artificial or prerecorded voice to place nonemergency calls to cellphone numbers without their recipients’ prior express consent. But Johnson and members of her putative class “have suffered no injury, or only a de minimis injury,” and thus don’t have standing to assert claims against UHC, said its answer. UHC isn’t liable to Johnson because it acted “reasonably and with due care and substantially complied with all applicable statutes,” it said. Her TCPA claims are barred to the extent that UHC “had a good-faith basis to believe that it had consent” to contact her phone number, it said. Any UHC actions taken that allegedly were made in violation of the TCPA “were neither knowing nor willful,” it said.

As held by the 9th U.S. Circuit Appeals Court, companies operating websites and mobile apps that seek to bind consumers to arbitration terms “must provide reasonably conspicuous notice of any such terms,” said plaintiff Ashley Ehrmantraut’s opposition Wednesday (docket 2:23-cv-01739) in U.S. District Court for Arizona in Phoenix to Safeway’s Oct. 16 motion to compel her single Telephone Consumer Protection Act class-action claim to arbitration (see 2310170028). Ehrmantraut alleges that Safeway promotes its goods and services by using unsolicited text-messaging, and that it continues to text-message consumers after they opt out of those solicitations (see 2308230003). Safeway’s motion to compel contends the parties’ arbitration agreement requires Ehrmantraut to pursue her claim “in an individual arbitration and bars her from pursuing this class action in court.” But simply underlining a hyperlink to the arbitration terms is established conspicuousness of those terms is “insufficient,” said Ehrmantraut’s opposition. “The link must be distinguished utilizing some color to indicate the existence of a clickable hyperlink,” it said. Companies also must provide consumers “with notice of what action will manifest assent to any properly disclosed terms,” it said. Both forms that Safeway depicts in its motion to compel fail the 9th Circuit’s requirements, it said. The first form lacks the necessary assent language, “as it provides no notice of what action a consumer must take to manifest assent” to Safeway’s terms of use, which contain the arbitration provision, it said. The second form is deficient because the terms of use hyperlink “is only underlined but not distinguished from the surrounding text in blue, or any color, font,” it said. It’s instead in “the same shade of black as the rest of the surrounding text,” it said. Safeway accordingly failed to place Ehrmantraut “on inquiry notice of its arbitration provision and no enforceable agreement exists,” it said.

ADT Solar “specifically denies” plaintiff Casey Bertram’s class-action allegations that it has violated the Telephone Consumer Protection Act, that Bertram “is entitled to bring this action on behalf of any class," or that he meets any of the requirements of Rule 23 of the Federal Rules of Civil Procedure, said ADT’s answer Wednesday (docket 2:23-cv-02206) in U.S. District Court for Central Illinois in Urbana. Bertram’s Sept. 22 complaint alleges ADT made at least four telemarketing calls to his residential number, despite that number having been listed on the national do not call registry since November 2005 (see 2309240001). But the complaint fails to state a claim on which relief can be granted because ADT had “the prior express written consent” with Bertram and each of his putative class members to make the calls, said ADT’s answer. To the extent that Bertram seeks treble damages for knowing and willful violations of the TCPA, “it violates ADT’s rights to protection against excessive fines, and equal protection and procedural and substantive due process” under the Fifth and 14th amendments, it said. “ADT expressly reserves the right to raise additional affirmative or other defenses that may be established by discovery and the evidence in this case,” said its answer. It asks the court to enter a judgment dismissing the complaint in its entirety with prejudice and awarding ADT its court costs and reasonable attorneys’ fees.

Plaintiff Patricia Crawford’s Oct. 3 opposition to the National Rifle Association Political Victory Fund’s (NRA-PVF) motion to dismiss her first amended Telephone Consumer Protection Act complaint (see 2310040026) “skirts” most of the motion’s key arguments, said the political action committee’s reply brief Tuesday (docket 2:23-cv-00903) in U.S. District Court for Arizona in Phoenix in support of its motion to dismiss. The NRA-PVF contends that the text message it sent Crawford, accompanied by a video file, isn’t a call using an artificial or prerecorded voice as defined under the TCPA. It also contends that the TCPA’s residential provision doesn’t apply to the NRA-PVF because it’s an exempted nonprofit sending a political, not commercial, message. No court has found that a text message violates the TCPA's prerecorded or artificial voice provision, or that interpreting the act to prohibit such text messages “would render most Americans TCPA violators,” said the NRA-PVF’s reply. Crawford’s opposition “vastly overstates” the case law, it said. It attempts to narrow the U.S. Supreme Court’s “TCPA-specific statutory interpretation teachings” in urging the Arizona district court to hold that a text message with a video file violates the artificial or prerecorded voice provision of the TCPA’s wireless provision, it said. Crawford’s challenge to the validity of the TCPA’s “residential-focused exemptions” fails because district courts “lack jurisdiction to consider the constitutionality of the FCC promulgated exemptions under the Hobbs Act,” it said. On the merits, there’s no dispute that the NRA-PVF’s text messages “were made for a political, non-commercial purpose” by a nonprofit entity, and thus are exempt under that provision, it said. The court should grant the motion and dismiss Crawford’s claims in their entirety, it said.

In light of the "pending settlement" of plaintiff Rita Estep-Wendell’s Telephone Consumer Protection Act claims against Citibank, the action is stayed because it’s “unnecessary to conduct further proceedings in this matter,” said an order signed Tuesday (docket 3:23-cv-00627) by U.S. District Judge Robert Chambers for Southern West Virginia in Huntington. Chambers will lift the stay for good cause shown upon the motion of a party within 30 days, said the order. The parties will submit an agreed order of dismissal by Nov. 24, it said. If they fail to do so, the court will enter an order dismissing the case without prejudice, it said. Estep-Wendell’s Sept. 20 complaint alleged that Citibank hounded her with debt collection calls that persisted even after she hired an attorney to send the bank a certified letter demanding that the calls stop (see 2309210016)

An individual who goes by the name Bob Hansen contributes to the national “barrage of telephone spam” by initiating illegal calls to plaintiff David Ulery to pitch his website construction services from a business in Santa Monica, alleged Ulery’s Telephone Consumer Protection Act class action Tuesday (docket 1:23-cv-02786) in U.S. District Court for Colorado in Denver. Hansen’s real identity is Robert Selfors, president of a North Carolina entity, Happy Panda, and Ulery “wants this telephone spam to stop,” said his complaint. “Others do as well,” and Ulery’s counsel, James Wertheim of LawHQ in Pepper Pike, Ohio, has “multiple other clients who have received telephone spam” from Selfors and Happy Panda, said his complaint. Ulery of Colorado Springs is the residential subscriber to his home phone number, which he listed on the national do not call registry in September 2011, it said. Selfors “has actually presented himself” as Bob Hansen in at least one YouTube video in which he poses as a senior marketing strategist promoting website listings and referral websites for multiple dental practices, said the complaint. The same individual appearing as Rob Selfors is also featured in multiple other videos promoting him as the minister of Brier Creek Fellowship, a North Carolina church, it said. “Selfors has, for a substantial period of time, perpetuated a pattern of initiating a telemarketing scheme” involving the use of the Bob Hansen alias, it said. It’s clear that Selfors “directly controlled, authorized, and/or participated in initiating this deceptive telemarketing scheme that included the various calls and prerecorded messages left for Ulery,” it said. The calls were “especially intrusive, frustrating, and annoying to Ulery” because Happy Panda and Selfors “purposefully hid their identity,” it said. “Ulery had no idea who was spamming, whether the spammer was somebody whom Ulery had previously told to stop, or whether it was safe for Ulery to make a do-not-call request,” it said. By not disclosing their identities, Selfors and Happy Panda “knowingly tried to prevent Ulery from monitoring and enforcing compliance with the TCPA,” it said. The class action seeks injunctive relief to halt the illegal spam calls, plus statutory damages. Efforts to reach Selfors Wednesday for comment on the TCPA class action were unsuccessful.

U.S. District Judge Lindsay Jenkins for Northern Illinois in Chicago denied the motion of New York Tribeca Group (NYTG), a commercial loan company, to dismiss plaintiff Porsche Stegall’s first amended Telephone Consumer Protection Act class action for failure to state a claim (see 2308210033), said the judge’s minute entry Monday (docket 1:23-cv-02862). Stegall alleges that NYTG runs “an aggressive cold-calling telemarketing campaign” that violates the TCPA. Contrary to NYTG’s motion to dismiss, Stegall’s allegations “here are sufficient at the pleadings stage to establish that the phone on which she received the calls was a ‘residential’ phone” under the TCPA, said the judge. NYTG’s answer to the amended complaint is due Nov. 13, said the judge.

Shore Capital is engaged in a "scheme" to sell mortgage services via "cold calls" to residential phone numbers listed for years on the "protected federal" do not call registry, alleged plaintiff Paul Sapan’s Telephone Consumer Protection Act class action Friday (docket 8:23-cv-01974) in U.S. District Court for Central California in Santa Ana. Shore makes the types of illegal telemarketing calls that are prohibited by the TCPA, “which gives victims of junk calls a private right of action to sue for the intrusion on their privacy,” it said. The cold calls are made to “massive lists of phone numbers” in the U.S., “with no regard” for whether those numbers have been listed on the national DNC registry or not, it said. Shore has “intentionally violated” the TCPA in a “so-far successful attempt to sell mortgage services for years,” it said. Sapan alleges that Shore made three calls to his home phone number in October 2019 to pitch its mortgage refinance services, though the number continuously was listed on the national DNC registry since December 2007. Sapan “pleads on information and belief” that officers, managers and employees for Shore “knew about the illegal telemarketing calls,” and in fact “ordered such calls to be made,” said his complaint. The conduct was “cold call junk telemarketing not directed to any specific person,” it said. The calls used “a technically sophisticated calling system” that could illegally hide caller IDs, it said. That indicates “that this was an intentional and organized corporate sales effort and not a rogue employee or random event,” it said. The class action seeks injunctive relief, plus an award of $1,500 for each TCPA violation “found to have been willful,” it said. Diamond Resorts, the defendant in another TCPA class action brought by Sapan, recently called Sapan one of the “most prolific TCPA litigants in the country” for having filed dozens of federal TCPA lawsuits since August 2012 (see 2308310039). Sapan responded in that case that he sees himself as a “TCPA Robin Hood” who sues "junk callers" for their illegal calls, “then gives his portion of the recovery to charity.”

Auto finance company Regional Acceptance “routinely violates” the Telephone Consumer Protection Act by using an artificial or prerecorded voice for the nonemergency calls it places, or causes to be placed, to cellphone numbers without the recipients’ prior express consent, alleged plaintiff D’Angelo Portis’ class action Thursday (docket 5:23-cv-01413) in U.S. District Court for Northern Alabama in Huntsville. Portis alleges receiving nearly five dozen calls from Regional Acceptance or its third-party vendor between March 29 and June 13, also seeking to reach a party named James, who he doesn’t know, said his complaint. On at least three separate occasions, Portis answered the calls and informed the company it was phoning the wrong number and demanded that the calls stop, but they nevertheless continued, it said. The Huntsville resident alleges he incurred “actual harm” as a result of the calls “in that he suffered an invasion of privacy, an intrusion into his life, and a private nuisance,” it said.