Vendors Buzz360 and Twilio, not the Republican Committee of Chester County (RCCC), Pennsylvania, that hired them, “are responsible and directly liable” to plaintiff Mark Fidanza “if his averments prove to be true” that his cellphone was inundated with RCCC text messages in the runup to the 2022 midterm elections (see 2305040004), said the RCCC’s third-party Telephone Consumer Protection Act complaint Monday (docket 2:22-cv-05185) in U.S. District Court for Eastern Pennsylvania in Philadelphia. Onvoy, a Twilio subcontractor, “may also be responsible for the delivery of these messages,” and so would be directly liable to Fidanza, said the complaint. If Fidanza or his putative classes are successful in obtaining a judgment against the RCCC for any of the claims asserted in Fidanza’s second amended complaint, then third-party defendants Buzz360, Twilio and Onvoy “are jointly, severally, partially or solely responsible” to third-party plaintiff RCCC “for all or part of that judgment, including costs and fees,” it said. Any liability imposed on the RCCC by the court or a jury “is the sole or partial responsibility” of Buzz360, Twilio and Onvoy “due to violation of statute or rule, or for the commission of common law tort or other liability-producing conduct,” including their “negligence” or “recklessness,” it said.

Toyota of Dallas denies the allegations in plaintiff Rhonn Mitchell’s June 6 class action that it violated the Telephone Consumer Protection Act, said the car dealership’s answer Monday (docket 3:23-cv-01278) in U.S. District Court for Northern Texas in Dallas. Mitchell alleges the dealership texted his residential phone with a telemarketing solicitation, was told to stop texting him, but it nevertheless texted him again on numerous occasions with more telemarketing solicitations. Toyota of Dallas affirmatively alleges that Mitchell’s complaint “fails to state a plausible claim upon which relief can be granted" under any theory of action under the TCPA, it said. It denies making, initiating or directing “any of the alleged communications" to Mitchell or any member of the putative class, it said.

Astro Companies, a telecommunication services provider, in a suit filed Monday claimed WestFax sends unsolicited fax ads in violation of the Telephone Consumer Protection Act and the Junk Fax Prevention Act, plus the FCC regulations promulgated under those statutes. The high-volume fax broadcaster “has devised an elaborate scheme that is a subterfuge for its high degree of direct involvement in what is possibly the largest junk fax operation” in the U.S., said Astro’s complaint (docket 1:23-cv-02328) in U.S. District Court for Colorado in Denver. “Over the years, in response to legal threats and allegations WestFax has claimed that it is not liable for violations of federal and state laws prohibiting or restricting junk faxes,” said the complaint. WestFax has claimed “that it has little direct involvement in the actual sending of the faxes,” and that its clients are responsible for any legal violations because WestFax “has no knowledge about the content of the faxes,” Astro said. But WestFax’s claims are false, said the complaint. WestFax “is knowingly and integrally involved in sending up to millions of junk faxes” daily to recipients in the U.S., it said: “Astro brings this case to put an end to WestFax’s unlawful and unfair practices and for statutory damages.” When a junk fax “burst” of WestFax’s doing takes place, “it can fill all available telecommunications and information technology resources on Astro’s network for a period of time, during which time Astro’s telecommunications services are not free to receive non-junk faxes,” it said. WestFax “has a high degree of involvement” in the sending of fax ads from advertisers it “induces” to subscribe to its fax broadcasting services, said the complaint. Between January 2021 and June 23 this year, WestFax, on behalf of one such advertiser, Coast Credit, sent Astro nearly 8,600 fax ads, it said. Those faxes “occupied Astro’s fax lines, making them unavailable for legitimate business purposes,” it said.

The National Rifle Association’s political action committee seeks the dismissal of plaintiff Patricia Crawford’s Aug. 14 first amended Telephone Consumer Protection Act class action for failure to state a claim, said its motion Tuesday (docket 2:23-cv-00903) in U.S. District Court for Arizona in Phoenix. Crawford alleges the PAC embarked on an unsolicited text message campaign, causing her and class members injuries, including invasion of their privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion. But Crawford’s allegations don’t support any TCPA violations, said the PAC. She brings her action “under the novel but fatally flawed legal theory” that a text message she received violated the TCPA because it contained a video file with audio content, and thereby constituted a call using a prerecorded or artificial voice, it said. Crawford’s claims Plaintiff’s claims “fail as a matter of law,” it said. While a text message is considered a call under the TCPA, courts distinguish between voice calls and text messages, and no court has ever held that a text message has a voice or has violated the artificial or prerecorded voice aspect of the TCPA, it said. “Nor should this Court here, as doing so would subvert the TCPA’s plain language, and lead to absurd results,” it said. It would make nearly every American with a cellphone a “TCPA-violator-in-waiting, if not a violator-in-fact,” it said. The court should decline to adopt Crawford’s “chainsaw” approach to problem-solving and “dismiss her claims in their entirety,” it said.

U.S. District Judge Aileen Cannon for Southern Florida in Fort Pierce lifted her stay of plaintiff April Roughton’s June 27 Telephone Consumer Protection Act class action against Newsmax, said Cannon’s signed order Friday (docket 9:23-cv-80969). Roughton alleges Newsmax texted her at least 20 times after she asked it Jan. 31 and again on Feb. 1 to stop. Cannon stayed Roughton’s case June 28, pending the 11th Circuit’s resolution of its en banc proceedings in Drazen v. Pinto. The 11th Circuit rendered its opinion July 24, holding that a TCPA plaintiff who receives even a single unwanted text solicitation has suffered a concrete injury for the purposes of the statute. Cannon’s order set a Sept. 28 deadline for Newsmax to answer or respond to Roughton’s complaint.

Plaintiff Marc Sharfman dismissed without prejudice his class action against Buena Vista Medical Services for alleged Telephone Consumer Protection Act violations, said a Friday notice (docket 6:23-cv-01176) in U.S. District Court for Middle Florida in Orlando. The June lawsuit alleged Buena Vista or its third-party agent pitched him for prescriptions for personal injuries and directed fax recipients to activate a digital pharmacy card for all their patients (see 2306270014). Each party will bear its own legal costs, said the notice.

Plaintiff Judy Mulvihill and her putative class members are barred from asserting their Telephone Consumer Protection Act claims against Spectrum in U.S. District Court for South Carolina in Greenville “to the extent their claims are subject to a binding arbitration agreement” and an agreement to arbitrate their disputes on an individual, non-class basis, said Spectrum’s answer Thursday (docket 6:23-cv-03542) to Mulvihill’s July 21 complaint. Mulvihill alleges Spectrum called her cellphone repeatedly and left prerecorded voice mails, seeking to reach Zachary Kelly, a person unknown to her, about a pending service interruption. Mulvihill’s claims also are barred because Spectrum “possessed a good faith belief that it had consent to call the numbers at issue,” said its answer. Spectrum also contends Mulvihill didn’t suffer “actual constitutional injury” due to its alleged TCPA misconduct and therefore doesn’t have standing, it said. Any damages, injury, violation or wrongdoing alleged in the complaint was caused by third parties, for which Spectrum can’t be held vicariously liable, said its answer. To the extent “contractors” engaged in the conduct alleged in the complaint, those vendors “acted outside the scope or in violation of the parties’ agreements,” and Spectrum didn’t “approve of that conduct,” it said. The application of the TCPA on which the complaint is based, including imposition of statutory damages on Spectrum, would violate the due process provisions of the Constitution, it said. Certain definitions contained in the TCPA also render the statute “unconstitutionally vague,” and the statutory penalties Mulvihill seeks are unconstitutionally “excessive,” it said. Mulvihill’s TCPA claims also are barred “to the extent they are based on regulations or rulings that exceed the FCC’s delegated authority,” said Spectrum. “Nor can the Hobbs Act be validly or constitutionally applied” to preclude Spectrum from raising defenses to an action “arising under the TCPA or rules or regulations promulgated thereunder,” it said.

Luna Care, an in-home physical therapy business that matches patients with physical therapists in dozens of states, sends unsolicited fax ads to market or sell its services and goods, in violation of the Telephone Consumer Protection Act, alleged plaintiff Victor Mallh’s class action Thursday (docket 1:23-cv-06676) in U.S. District Court for Eastern New York in Brooklyn. The TCPA prohibits any person or entity from sending junk faxes, it said. The TCPA also mandates that if a person or entity sends an otherwise unsolicited fax ad to a recipient with which the sender has an established business relationship, the sender must include a clear and conspicuous opt-out notice on the ad's first page, it said. Luna not only had no established business relationship with the fax recipients, but its faxes contain no clear and conspicuous opt-out notice, it said. Luna’s unsolicited faxes “damage their recipients” by wasting their “valuable time and energy,” and by requiring “additional time and labor to attempt to discern the source and purpose of the unsolicited message,” it said. Mallh's complaint, which court records show was the single TCPA action filed Thursday in the federal courts, alleges Luna sent thousands of ads in “fax broadcasts” to one or more lists of targeted recipients throughout the U.S. during the past four years, including two that Mallh received July 18 and Aug. 29.

Defendant Vio Franchise Group, which operates a chain of “med-spas,” seeks to compel plaintiff Brandon Weitz’s single Telephone Consumer Protection Act class action claim to arbitration, said its motion Wednesday (docket 1:23-cv-01231) in U.S. District Court for Northern Ohio in Cleveland. Weitz alleges Vio promotes its products and services with unsolicited telemarketing texts, “harming thousands of consumers in the process” (see 2306230002). “Setting aside the fact that Weitz expressly consented in writing to receive text messages about his membership, arbitration is the proper forum to adjudicate Weitz’s claim,” said Vio’s motion to compel. In Weitz’s membership agreement with Vana Laser Club, a Vio “affiliate entity,” he agreed to arbitrate all disputes with Vio, it said. The agreement “plainly provides” that arbitration is to be conducted in Miami-Dade County, Florida, on an individual basis, it said. The motion asks the court to stay Weitz’s action until the arbitration is completed.

Defendant Bank of the West removed to U.S. District Court for Central California in Los Angeles Wednesday an Aug. 4 state court complaint (docket 2:23-cv-07365) in which plaintiff Renata King alleges the bank hounded her with “numerous harassing calls” using an automatic telephone dialing system to collect a debt. The bank “made enough calls to be considered harassment,” causing King “high levels of stress,” said her complaint, alleging violations of California’s Rosenthal Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. She told the bank to stop calling her, but still the calls continued, it said. Due to the bank’s wrongdoing, King “continues to suffer injury” to her feelings, plus “personal humiliation, embarrassment, mental anguish and emotional distress,” it said. She seeks a jury trial, plus treble damages of $1,500 per violation for the bank’s willful and knowing TCPA misconduct.