Plaintiff Mariana Munoz and defendant Wyndham Vacation Ownership submitted a joint motion for dismissal of Munoz’s action with prejudice, said a Tuesday filing (docket 3:23-cv-00342) in U.S. District Court for Southern California in San Diego. Parties will bear their own fees and costs. Munoz’s February robocalling complaint claimed Wyndham used an automatic telephone dialing system to place calls after she experienced financial hardship and defaulted on her regular monthly payments (see 2302230041). Wyndham argued in its May reply to the complaint that award of statutory or punitive damages to Munoz would be “grossly disproportionate" to any injury she sustained (see 2305160041).

Plaintiff Jean Zoulek intends to move for class certification “at the appropriate time” and may move for summary judgment in her putative Telephone Consumer Protection Act class action against telemarketing vendor A Marketing Resource (AMR), said the parties' joint Rule 26 report and discovery plan Monday (docket 2:22-cv-01464) in U.S. District Court for Eastern Wisconsin in Milwaukee. Zoulek alleges Gannett outsourced the calls to AMR, which violated the TCPA when it called numbers on the national do not call registry and didn’t stop when consumers asked it to (see 2212080002). Gannett was terminated as AMR’s co-defendant in March. The parties will engage in future good-faith settlement talks “at the appropriate time,” said the report. Plaintiff Zoulek “anticipates requiring call logs for the class in order to appropriately evaluate the action prior to meaningful settlement discussions,” it said.

Debt-relief company Streamline Performance transmits telemarketing calls or voice messages to consumers using an artificial or prerecorded voice, and does so without their consent, alleged plaintiff Iyonna Neadle’s class action Friday (docket 7:23-cv-07108) in U.S. District Court for Southern New York in Manhattan. Neadle seeks injunctive relief to halt the company’s illegal conduct, “which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals,” it said. She also seeks statutory damages on her own behalf and on behalf of members of her proposed class, and any other available legal or equitable remedies, it said.

Plaintiff Lisa Remus’ Telephone Consumer Protection Act claims against Adam & Eve should be dismissed because she “actually opted in” to receiving text messages from the adult products distributor, said its motion to dismiss Friday (docket 4:23-cv-10054) in U.S. District Court for Southern Florida in Key West. Remus’ first amended class action June 14 alleged Adam & Eve sent her unsolicited text messages despite her cellphone number being listed on the national do not call registry. But Remus, in addition to opting in to receive the text messages, agreed any dispute with the company about the texts would be subject to arbitration and that no class actions would be permitted, said the motion.

Geico wrongly moves for summary judgment on plaintiff Michael Smith’s Telephone Consumer Protection Act claims the insurer inundated his cellphone with prerecorded robocalls “on the sole basis” that Smith consented to the calls, said his memorandum of law Wednesday (docket 8:21-cv-02746) in U.S. District Court for Maryland in Greenbelt in opposition to Geico’s motion. Smith never gave his phone number to Geico or co-defendant ExamWorks, which made the calls on Geico’s behalf, said the memorandum. Geico’s assertion that Smith nevertheless consented through an “intermediary” fails because he didn’t consent “in the first instance," it said. No intermediary “conveyed his consent” to Geico or its vendor, as is required “to satisfy consent via an intermediary,” it said. Smith regardless instructed Geico “not to call him prior to any calls to him, which revoked any consent in any case,” it said: “Summary judgment should be denied.” In Smith’s case against Geico, “genuine disputes of material fact preclude the entry of summary judgment” in Geico’s favor, said the memorandum. Geico fails to show it’s entitled to judgment “as a matter of law,” it said. It also fails to establish that Smith “consented to the calls at issue and it fails to rebut his showing of revocation” of consent, it said.

Apollo Interactive, an advertising agency that provides lead generation services to businesses in the insurance industry, inundates U.S. consumers with unsolicited texts through a program called Apollo Alerts, to numbers listed on the national do not call registry, alleged plaintiff Heather Lee Minor’s Telephone Consumer Protection Act class action Thursday (docket 4:23-cv-00355) in U.S. District Court for Northern Florida in Tallahassee. Minor alleges she listed her cellphone number on the DNC registry in March 2022, yet she received multiple text messages from Apollo targeted to named consumers she didn’t know. The Tallahassee resident responded “stop” to the sixth Apollo text message she received in June 2022, and received an “opt-out” confirmation in return, yet the text-messaging persisted, said her complaint. The unauthorized text messages harmed her “in the form of annoyance, nuisance, and invasion of privacy, and disturbed her use and enjoyment of her phone,” it said. Apollo’s conduct also contributed to the wear and tear on her phone’s battery and consumed significant memory on her device, it said. Other consumers have posted complaints directly to Apollo about its unlawful and unsolicited telemarketing practices, it said.

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 Telephone Consumer Protection Act, alleged a class action Wednesday (docket 2:23-cv-03923) in U.S. District Court for South Carolina in Charleston. Plaintiff Mark Fitzhenry and his putative class members “never consented to receive these calls,” said his complaint. Because telemarketing campaigns “generally place calls to hundreds of thousands or even millions of potential customers en masse,” Fitzhenry brought the action on behalf of a proposed nationwide class of other persons who received illegal telemarketing calls from or on behalf of Edufficient.com, it said. The complaint also alleges violations of the South Carolina Telephone Privacy Protection Act (SCTPPA), which prohibits a company from making a call to a South Carolina phone number that’s listed on the national do not call registry, as Fitzhenry’s number was before he received the calls. The SCTPPA provides for monetary penalties that are exponentially higher than those under the TCPA -- as much as $5,000 for each willful violation. Edufficient.com and MediaSpike “knowingly and actively accepted business” that originated through the illegal telemarketing calls from Boomsourcing, alleged the complaint. “Despite the fact that First Impressions has received repeated complaints alleging violations of the TCPA, MediaSpike continued to work with First Impressions,” it said. The complaint names Edufficient.com and MediaSpike as co-defendants, but not First Impressions or Boomsourcing.

The 9th U.S. Circuit Court of Appeals recently said a plaintiff didn’t have a cause of action under the Telephone Consumer Protection Act where the plaintiff used the subject phone number in 12 TCPA cases filed over a 12-month period, in an unpublished decision, blogged the Weiner Brodsky law firm Wednesday. On a motion to dismiss in the district court, the defendants argued the number at issue in the case wasn’t a “residential” number because the plaintiff had used it only for TCPA litigation, maintaining a different number for personal use, it said. The district court agreed and dismissed the TCPA claims with prejudice, the firm said. On appeal, the 9th Circuit affirmed the district court’s dismissal, it said. Relying on its earlier precedent, the 9th Circuit said a phone number on the national do not call registry is presumed to be a residential one, but “that presumption can be rebutted by factors that demonstrate that the subject phone number is not for residential use,” the firm said.

U.S. District Judge Patti Saris for Massachusetts in Boston signed an endorsement order Tuesday (docket 1:23-cv-10569) granting defendant Liberty Mutual’s motion to phase the issues to be litigated in the Telephone Consumer Protection Act class action brought by plaintiff Jeffrey Scott. His complaint alleges Liberty Mutual phoned him eight times to sell him an insurance policy he didn’t want or need, and did so to a number listed on the national do not call registry since August 2010 (see 2303150043). Scott asserts his TCPA claim on his own behalf and as a “purported class representative,” said Liberty’s June 20 motion. Liberty believes Scott consented to the calls at issue in his case, it said. If that’s so, Scott has no standing to assert claims on behalf of the class, it said. Saris’ order permits the parties to do discovery and motion practice on the issue of consent before addressing other issues, including class issues, said her endorsement. Her order sets an Oct. 31 filing deadline for motions for summary judgment.

The 9th U.S. Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff Lucine Trim’s Telephone Consumer Protection Act claims that Reward Zone violated the statute when it sent her at least three mass marketing text messages that used prerecorded voices, said its opinion Tuesday (docket 22-55517). A three-judge panel said the text messages didn’t use prerecorded voices under the TCPA because the texts didn’t include “audible components.” The panel relied on the “statutory context” of the TCPA and “the ordinary meaning of voice,” which showed Congress used the word voice “to include only an audible sound, and not a more symbolic definition such as an instrument or medium of expression,” it said. “The context of the statute bolsters that Congress did not understand the meaning of voice to include a metaphorical component such as medium of expression,” said the opinion: “If voice calls encompassed text messages, the inclusion of the term text message would be surplusage, and Congress would have written the statute in a manner contrary to a basic canon of statutory construction,” it said. Plaintiff Trim sparked some notoriety for her appeal when her reply brief in March argued that there’s “no such thing” as an artificial voice that uses a larynx, syrinx and lungs, as the district court had defined it (see 2303170046).