Beyond Finance, a provider of debt-consolidation services, committed “knowing and intentional” violations of the Telephone Consumer Protection Act, and didn’t maintain procedures “reasonably adapted to avoid any such violation,” alleged plaintiff Radley Bradford’s class action Wednesday (docket 3:23-cv-01904) in U.S. District Court for Southern California in San Diego. In Beyond Finance’s “overzealous attempt” to market its services and grow its business significantly, the company continues to make “unsolicited telemarketing phone calls without the prior express written consent of the call recipients,” alleged the class action. Through this “method,” the defendant has invaded Bradford’s “personal privacy” and that of members of his class, it said. Bradford’s cellphone number was listed with the national do not call registry since March 2019, it said. The Texas resident didn’t give Beyond Finance his cellphone number “at any point in time,” nor did he give permission for the company to call it, it said. Bradford also didn’t have “an established business relationship” with Beyond Finance during the time of its phone solicitations, or a “personal relationship” with the company “at any point in time,” it said. In an August 2022 email after a solicitation call from a Beyond Finance agent, Bradford asked the agent to be removed from the company’s contact list and added to its internal do not call list, said the class action. In so doing, Bradford “revoked any type of consent” the company may have relied on “to contact him with telemarketing calls,” it said. But the company nevertheless “continued to harass” Bradford with “further telemarketing calls,” it said. “Upon information and belief,” Beyond Finance “made the same or substantially similar” phone solicitations “en masse to thousands of consumers nationwide,” said the class action. Bradford “suffered an invasion of a legally protected interest in privacy, which is specifically protected by the TCPA,” it said. “The TCPA was intended to give individuals control over how and where they receive telephonic communications,” said the complaint. When Beyond Finance phones consumers without their consent, it “fails to respect the limitations imposed by the TCPA,” it said. In so doing, the company invades consumers’ privacy “and violates the spirit and intent behind the TCPA,” it said.

Plaintiff Mark Fidanza reached an agreement in principle to resolve his Telephone Consumer Protection Act claims against the Republican Committee of Chester County, Pennsylvania, Fidanza’s counsel, Steve Mahan of Weisberg Cummings, wrote U.S. District Judge Kelley Brisbon Hodge for Eastern Pennsylvania in Philadelphia in a letter Wednesday (docket 2:22-cv-05185). The parties “are in the process of finalizing said resolution,” said Mahan. They are in agreement that the court “may process this case as settled,” he said. “To that end,” they asked the court to issue an order dismissing the action without costs and without prejudice to the right of either party, on good cause shown within 60 days, “to reinstate the action if settlement is not consummated,” he said. Fidanza’s Dec. 29 class action alleged the committee inundated his cellphone with 17 text message solicitations in the run-up to the Nov. 8 midterm elections, including 10 text messages he received in less than a single hour (see 2212280028). The case took its unusual turn when the committee filed a third-party complaint that sought to hold its telemarketing vendors accountable for money damages in case it was found vicariouly liable for the alleged TCPA wrongdoing (see 2305040004).

Plaintiff Courtney Hill’s Oct. 10 opposition (see 2310110042) “fails to rebut” InvestorPlace Media’s showing that her first amended Telephone Consumer Protection Act complaint should be dismissed with prejudice, said InvestorPlace’s reply Tuesday (docket 5:23-cv-00111) in U.S. District Court for Western North Carolina in Statesville in support of its motion to dismiss. Hill’s complaint fails to state a claim because it doesn’t plead facts “sufficient to plausibly allege” that the text messages she allegedly received constitute “telemarketing” within the meaning of the “governing regulation,” it said. Hill doesn’t dispute that the texts she allegedly received don’t “on their face contain any content” that’s designed to promote the purchase or rental of goods or services, “as is required to state a claim under the relevant rule,” said the reply. Rather than arguing that the text messages themselves constitute telemarketing, Hill takes the position that any message directing the recipient to any portion of a business’ website constitutes telemarketing, “so long as that business sells goods or services somewhere on its website,” it said. But alleging InvestorPlace provided links to informational content on its website isn’t sufficient to plausibly allege the messages were sent for telemarketing purposes, it said. Multiple courts have rejected “such an expansive reading of the regulation,” and “for good reason,” it said.

Tranzact, a seller of burial insurance, is waging a campaign to market its services through a third-party, temporarily called John Doe Corp., that makes telemarketing calls to numbers on the national do not call registry, in “plain violation” of the Telephone Consumer Protection Act, alleged Virginia Cole’s class action Tuesday (docket 3:23-cv-01083) in U.S. District Court for Middle Tennessee in Nashville. Indicative of its “en masse calling,” the company used spoofed local caller ID numbers, it said. Tranzact was previously targeted in complaints and lawsuits for contacting numbers in violation of the TCPA, or hiring others to do so on its behalf, it said. Cole and all members of her class have been harmed by the unlawful conduct “because their privacy has been violated and they were annoyed and harassed,” it said. The FCC said sellers such as Tranzact may not avoid vicarious TCPA liability “by outsourcing telemarketing to third parties,” it said.

Safeway seeks to compel the Telephone Consumer Protection Act claim of class-action plaintiff Ashley Ehrmantraut to arbitration, said its motion Monday (docket 2:23-cv-01739) in U.S. District Court for Arizona in Phoenix. Ehrmantraut alleges Safeway promotes its goods and services by using unsolicited text-messaging, and it continues to text-message consumers after they opt out of those solicitations (see 2308230003). Ehrmantraut asserts a single-count TCPA claim on behalf of herself and a putative class, but the parties’ arbitration agreement requires her to pursue her claim “in an individual arbitration and bars her from pursuing this class action in court,” said Safeway’s motion to compel. Ehrmantraut enrolled in Safeway’s loyalty program through grocery retailer's mobile app in March, said the motion. In so doing, she provided Safeway with her mobile phone number and “affirmatively accepted” its terms of use, which includes the mandatory arbitration provision, it said.

CR Fitness, the largest franchisee of Crunch Fitness gyms, with more than 40 clubs in Florida, Georgia, North Carolina and Texas, embarked on an aggressive marketing campaign to sell club memberships that includes placing unsolicited, prerecorded telemarketing robocalls to consumers, in violation of the Telephone Consumer Protection Act, alleged plaintiff Ben Davis’ class action Friday (docket 8:23-cv-02333) in U.S. District Court for Middle Florida in Tampa. CR Fitness called Davis’ cellphone without his consent, and even though his number was listed on the national do not call registry since December 2011, it said. Upon information and “good faith belief,” CR Fitness maintains or has access to “outbound transmission reports for all robocalls sent for advertising and promoting its services and goods,” it said. Those reports “show the dates, times, target telephone numbers and content of each message” sent to Davis and his potential class members, it said. The Collin County, Texas, resident believes CR Fitness “engages in mass robocalling nationwide without any consent from the recipients of its calls,” it said. The calls caused Davis and the potential class members harm, “including liquidated damages, inconvenience, invasion of privacy, aggravation, annoyance and violation of their statutory privacy rights,” it said.

Plaintiff Paul Sapan and defendant Diamond Resorts reached a “private settlement of the material issues” in their Telephone Consumer Protection Act dispute, said Sapan’s notice of settlement Thursday (docket 8:23-cv-00147) in U.S. District Court for Central California in Santa Ana. The parties plan to file a joint motion to dismiss the entire case with prejudice by Jan. 15, because the terms of the settlement “require an undertaking in the first week of January,” said the notice. Sapan alleged in his Jan. 23 class action that Diamond engages in a scheme to sell timeshares via “cold calls” to residential phone numbers listed on the national do not call registry, in violation of the TCPA (see 2301240064). Relations between the parties appeared recently to grow exceptionally strained when, in an Aug. 30 joint stipulation, Diamond accused Sapan of being one of the “most prolific TCPA litigants in the country,” while Sapan depicted himself as a “TCPA Robin Hood” who sues "junk callers" like Diamond for their illegal calls, “then gives his portion of the recovery to charity” (see 2308310039).

New York Tribeca Group (NYTG), a commercial loan company, “uses automated systems to send outbound telephonic sales calls, including text messages, to hundreds if not thousands of consumers across the U.S.,” alleged plaintiff Dana Ehde’s Telephone Consumer Protection Act class action Thursday (docket 1:23-cv-07636) in U.S. District Court for Eastern New York in Brooklyn. The consumers who receive NYTG’s calls include many whose phone numbers are listed on the national do not call registry, said the complaint. NYTG made sales calls or caused them to be made using “spoofed phone numbers” that weren’t capable of receiving calls or connecting the original call recipient to NYTG, it said. Other consumers posted complaints online about receiving NYTG’s unsolicited sales calls and text messages, as did “multiple” NYTG employees, said the complaint. The NYTG employees who posted online reviews about the company’s telemarketing practices attested that NYTG provided them with consumer leads for “cold calling,” it said. NYTG continues to place unsolicited calls and text messages even after consumers demanded they stop, it said. Plaintiff Ehde of Chalfont, Pennsylvania, began receiving NYTG’s unsolicited calls to her phone in mid-2021 offering “business capital loans,” it said. All the calls and texts were directed toward a party named Andy, who Ehde doesn’t know but believes was the previous owner of her cellphone number, it said. The calls and texts persisted, despite Ehde’s clear opt-out requests, it said. The unauthorized sales calls and text messages harmed Ehde “in the form of annoyance, nuisance, and invasion of privacy, and disturbed the use and enjoyment of her phone,” it said. Court records show Ehde’s lawsuit is the fourth TCPA action filed against NYTG since Nov. 18.

U.S. Magistrate Judge Ryon McCabe for Southern Florida in West Palm Beach scheduled an Oct. 19 hearing at 2 p.m. EDT via videoconference on defendant loanDepot’s motions to dismiss plaintiff Zachary Sawicki’s Telephone Consumer Protection Act second amended class action and to strike Sawicki’s class allegations, said the judge’s paperless order Wednesday (docket 2:22-cv-14425). U.S. District Judge Aileen Cannon referred the motions to McCabe Tuesday for a report and recommendation (see 2310110037). LoanDepot is seeking dismissal of the “abandoned call” count in Sawicki’s complaint. Under the TCPA, a call is deemed abandoned if it’s not connected to a live sales representative within two seconds of the called person’s completed greeting.

San Diego County resident Eli Olivares received at least nine “live calls” from William Brothers Building & Construction on his residential cellphone to “pitch” home remodeling services, though his number was listed on the national do not call registry since 2015, he alleged in his Telephone Consumer Protection Act complaint Wednesday (docket 3:23-cv-01858) in U.S. District Court for Southern California in San Diego. Olivares’ cellphone number “is purely personal and residential and is not used in any way shape or form to operate any business entity or concern,” said his complaint. Each of the calls complained of was initiated using an automated telephone dialing system, “which used a random or sequential number generator to determine the order in which to pick phone numbers from a preproduced list,” it said. Olivares traced the calls to an entity called the California Design Center, with which he had never done any business and had never given any consent for the calls, it said. Olivares alleges he was harmed by the “junk calls” through “the direct waste of his time during the calls themselves,” plus the “indirect waste of time” in having to “break from other important tasks and spend time catching up after these junk calls,” said his complaint. The calls forced him to pay the costs “of having to pursue legal remedies,” it said. He also suffered injury “in the aggravation and consequent health effects of stress these illegal intrusions have caused,” it said.