Defendant Club 1 Hotels, a travel tech company boasting “the world's largest collection of members-only wholesale hotel rates and direct contracts that are not available to the public,” began “bombarding” plaintiff Lachae Vickers’ cellphone with telemarketing text messages in August 2022, to a number listed on the national do not call registry, alleged Vickers’ Telephone Consumer Protection Act class action complaint Monday (docket 1:23-cv-07092) in U.S. District Court for Eastern New York in Brooklyn. “At no point in time” did Vickers, of Queens County, New York, provide Club 1 “with her express written consent to be contacted,” and the company continually ignored her multiple opt-out requests, said the complaint. The defendant’s unsolicited text messages caused Vickers “actual harm,” it said. She estimates she wasted 15-30 seconds reviewing each of the defendant’s unwanted messages, it said. Each time, she had to stop what she was doing “to either retrieve her phone and/or look down at the phone to review the message,” it said. Vickers also wasted 15 minutes “locating and retaining counsel for this case” so she could try to stop the defendant’s unwanted calls, it said.

Plaintiff Mark Fitzhenry voluntarily dismissed with prejudice his Telephone Consumer Protection Act class action claims against MediaSpike and Edufficient.com, said his notice Monday (docket 2:23-cv-03923) in U.S. District Court for South Carolina in Charleston. Fitzhenry alleged Edufficient.com, a college enrollment marketing agency, hired lead generator MediaSpike to find customers for client universities, which in turn retained subcontractors First Impressions and Boomsourcing to place prerecorded robocalls to consumers, in violation of the TCPA (see 2308100001).

U.S. District Judge Charlene Edwards Honeywell for Middle Florida in Tampa denied without prejudice defendant Apollo Interactive’s Sept. 21 motion to dismiss plaintiff Eric Moorman’s Telephone Consumer Protection Act class action for failure to comply with Local Rule 3.01(g), said the judge’s text-only order Friday (docket 8:23-cv-01533). “The rule requires a movant to confer in good faith with an opposing party prior to filing a motion to dismiss and to include a certification of conferral,” said the order. Apollo’s motion to dismiss doesn’t contain the required certification, it said. There’s also no indication whether Apollo conferred with Moorman before filing its motion, it said. Americans receive billions of spam text messages every year, and Moorman’s July 10 complaint alleges Apollo, a performance marketing and lead-generation agency in Los Angeles, is responsible for a “significant portion” of them (see 2307110063)

Plaintiff Casey Bertram brought a class action Friday in U.S. District Court for Central Illinois in Urbana to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act, alleging ADT Solar made telemarketing calls to numbers on the national do not call registry to promote its goods and services. His complaint (docket 2:23-cv-02206) alleges ADT made at least four telemarketing calls to his residential number, though the number was listed on the DNC registry since November 2005. The calls all included scripted sales pitches about solar products, said the complaint. ADT wanted Bertram to install and use its solar panels for a fee, but Bertram wasn’t interested and he told ADT so, it said. But the calls continued, it said. ADT has previously been sued to stop its unlawful telemarketing conduct, it said.

U.S. District Judge Joseph Stadtmueller for Eastern Wisconsin in Milwaukee denied Kohl’s motion to dismiss plaintiff Ruhi Reimer’s first amended Telephone Consumer Protection Act complaint, said his signed order Thursday (docket 2:23-cv-00597). The judge’s order rejected Kohl’s arguments that the TCPA’s do not call provision applies to only voice calls, not to text messages. Stadtmueller relied heavily on an April 7 FCC NPRM in which the FCC proposed to clarify that the DNC protections apply to text messages as well as voice calls, said the order. Kohl’s argued the FCC’s proposed amendment “can only be forward-looking,” not a rule that was already in force. The judge agreed with the plaintiff’s argument that the NPRM was intended to clarify and remove all doubt on whether the TCPA’s DNC provision covers text messages, said the order. The 9th Circuit U.S. Court of Appeals, in an order issued after the NPRM, said the DNC provision applied to text messages sent before the NPRM, in 2019 and 2020, the order said. Stadtmueller agrees that by exempting text messages in certain areas of the TCPA, the FCC “has implicitly stated that text messages are already included” in the DNC provision, said the order. Language used in the NPRM’s synopsis, that the FCC was trying to further protect consumers from unwanted marketing texts, “suggests a desire to ensure current regulations are working effectively,” it said. Stadtmueller said the NPRM “merely restates what the law is and has been,” and Kohl’s motion “must be denied,” it said.

U.S. District Judge Kelley Hodge for Eastern Pennsylvania in Philadelphia denied as moot Twilio’s Aug. 28 motion to dismiss the Telephone Consumer Protection Act complaint of third-party plaintiff, the Republican Committee of Chester County (RCCC), Pennsylvania, said the judge’s signed order Thursday (docket 2:22-cv-05185). The motion was rendered moot after the RCCC filed an amended complaint Sept. 11, said the judge. Buzz360 and Twilio, not the RCCC, which hired the vendors, are “directly liable” to plaintiff Mark Fidanza “if his averments prove to be true” that his cellphone was inundated with RCCC text messages in the run-up to the 2022 midterm elections, said the RCCC’s amended complaint (see 2309120015).

Telehealth company Life MD contributed to the national “barrage” of phone spam by initiating more than 100 illegal text messages to the residential cellphone of plaintiff Shannan Davis, alleged her Telephone Consumer Protection Act class action Thursday (docket 8:23-cv-02138) in U.S. District Court for Middle Florida in Tampa. “Davis wants this telephone spam to stop,” said her complaint. “Others do as well,” it said: “LifeMD has been sued other times for telephone spam, but that has not gotten LifeMD to stop spamming illegally.” Court records show Davis’ TCPA complaint is the third against LifeMD filed since Jan. 23. The Lakeland, Florida, resident alleges her home, phone and privacy “have been invaded by LifeMD’s non-emergency text messages,” said her complaint. The text messages solicited products, offered deals and discounts, “and even offered gifts for patronage,” it said. Davis replied “stop” at least twice since November, and immediately received a confirmation SMS saying she had been unsubscribed and would no longer receive messages, it said: “But LifeMD ignored the stop requests and continued to spam Davis with more text messages.” The court should award Davis and her class members $1,500 in statutory damages for each TCPA violation “because the violations were knowing and willful,” said her complaint. It should also enjoin LifeMD from future violations, it said.

Citibank hounded plaintiff Rita Estep-Wendell with debt collection calls that persisted even after she hired an attorney to send the bank a certified letter demanding that the calls stop, alleged her Telephone Consumer Protection Act complaint Wednesday (docket 3:23-cv-00627) in U.S. District Court for Southern West Virginia in Huntington. She also contends she’s entitled to remedies under the West Virginia Consumer Credit and Protection Act, said her complaint. Citibank’s TCPA violations were willful to the extent that Estep-Wendell repeatedly removed her consent to call her cell phone, and Citibank ignored her, it said. As a result of Citibank’s unlawful conduct, Estep-Wendell “has been annoyed, inconvenienced, harassed, bothered, upset, angered, harangued and otherwise was caused indignation and distress,” it said.

Plaintiff Warren Ingram fails to state a claim on which relief may be granted, and any alleged text messages he received were made with his prior express consent, said defendant Case-Mate Tuesday in its answer (docket 3:23-cv-02813) to Ingram’s first amended Telephone Consumer Protection Act complaint in U.S. District Court for Northern California in San Jose. Text messages sent to Ingram “were not a nuisance or an invasion of privacy, and they did not represent intrusive advertising, marketing, or soliciting,” said the filing. Messages he received weren't unwanted and didn’t fall within the scope of communications Congress intended to remedy through the TCPA, Case-Mate said. Any claim against Case-Mate is barred because Ingram didn’t sustain damages, he’s not entitled to actual or statutory damages under the TCPA, the company didn’t commit knowing or willful conduct and Ingram gave prior consent or permission for Case-Mate to contact him, it said. Conduct allegedly giving rise to a violation “was not intentional” and thus couldn’t violate the TCPA, said the defense. The primary use of the phone involved in the dispute is for business purposes, so Ingram lacks standing to bring claims, it said. The TCPA and subsequent orders and rulings of the FCC interpreting the TCPA, “violate the First Amendment,” and the TCPA, including statutory damages available under the act, violates the due process clause of the Fifth and Fourteenth amendments, said the answer. Fines and penalties sought by Ingram violate the excessive fines clause of the Eighth Amendment and the takings clause of the Fifth Amendment, it said. To the extent Ingram pleaded an automatic telephone dialing system claim, those must be dismissed because his phone number “was not randomly or sequentially generated,” the answer said. Plaintiff's claims are “frivolous and lack good faith basis” in fact or law, said the defense.

A consumer’s first amended complaint for Telephone Consumer Protection Act wrongdoing against Integrity Vehicle Group and Vanguard Vehicle Armor should be dismissed for failure to state a claim, said Integrity’s motion to dismiss Monday (docket 4:23-cv-01194) in U.S. District Court for Middle Pennsylvania in Williamsport. Plaintiff Zachary Fridline’s July complaint (see 2307190012) alleges telemarketing agent Vanguard Vehicle Armor placed several calls to Fridline, but it didn't allege Integrity made any calls, said the motion. Fridline alleges Integrity should be held vicariously liable for Vanguard’s alleged illegal marketing, but to demonstrate vicarious liability, plaintiff must allege facts that plausibly demonstrate Integrity controlled and directed the marketing methods used by Vanguard -- or that Integrity’s actions caused Fridline to reasonably believe Integrity authorized those marketing practices, said the motion. He did neither, said Integrity. Fridline alleges that during phone calls, the caller represented to him that Integrity would provide “administrator services” for car warranty services being offered and that Vanguard gave him a sample contract, with Integrity listed as the administrator of the service contract. The allegations don’t establish that Integrity controlled and directed the marketing methods that Vanguard allegedly used, the motion said. Instead, Fridline’s allegations suggest a “possible business relationship between parties,” the motion said.