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).

LoanDepot seeks the dismissal of plaintiff Lee Abrahamian’s first amended Telephone Consumer Protection Act class action for failure to state a claim (see 2308040031), said its motion Monday (docket 2:23-cv-00728) in U.S. District Court for Arizona in Phoenix. Abrahamian seeks damages for the “illegal and unlawful” text messages and calls that loanDepot made to his cellphone number, claiming the number has been listed on the national do not call registry since October 2007. But loanDepot argues the complaint "must be dismissed" because Abrahamian failed to allege he “personally listed his number” on the national DNC registry, said the motion. Under the statute's plain language, the mere fact that a number is listed on the DNC registry isn’t enough “to give a plaintiff a claim,” it said. A plaintiff must have actually registered the number on the DNC registry him or herself, it said. He also doesn’t allege whether he answered the two calls at issue, it said. He therefore can‘t “establish the content or purpose of those calls which is dispositive of his claims,” it said. A plaintiff can recover only for marketing calls, and a single text message alone “is not actionable” under the TCPA, it said. In light of recent 9th Circuit U.S. Court of Appeals precedent, Abrahamian’s class claims for violation of the TCPA “must fail for lack of alleged facts plausibly demonstrating a recovery of aggregated damages is permissible in this action,” it said.

The attorneys general of seven plaintiff states reached settlement agreements with remaining robocalling defendants Scott Shapiro and Michael Smith, eliminating the need for their Aug. 21 trial, said the parties’ joint notice Friday (docket 4:20-cv-02021) in U.S. District Court for Southern Texas in Houston. The filing served notice of the parties’ forthcoming agreed motions requesting the court’s entry of stipulated orders for permanent injunction and monetary judgment, but didn’t disclose the settlement terms. The separate settlement agreements with Shapiro and Smith are “contingent” on approval from the plaintiffs states’ “respective front offices,” said the notice. Four states already have approval to file “the respective stipulated orders” with the court, it said. The approval process “may take a few weeks” for the remaining plaintiff states to complete, it said. Finalization and approval of the settlement agreements would end the litigation that began more than three years ago in which the states alleged multiple defendants placed more than 300 million telemarketing robocalls to consumers between January and July 2019, including 126 million robocalls in Texas alone.

Plaintiff Marc Calamaras seeks damages and injunctive relief, plus “all other available legal or equitable remedies,” against Re/Max for its unlawful actions in negligently and willfully texting his cellphone and invading his privacy, alleged his Telephone Consumer Protection Act class action Thursday (docket 8:23-cv-01733) in U.S. District Court for Middle Florida in Tampa. The Florida resident and members of his proposed class received “unwanted spam telemarketing text messages” from Re/Max “without regard” to the TCPA and the national do not call registry “and in disregard for individual privacy,” it said. The lawsuit challenges the legality of all telemarketing text messages that Re/Max sent, or were sent on its behalf, beginning from July 2019 “through the date of preliminary approval of class certification.” Calamaras’ phone number has been listed on the DNC registry since June 2006, said his complaint. Re/Max uses mass spam telemarketing text messaging to send unsolicited text messages to promote his services, it said. He estimates he received at least 10 unsolicited text messages since January 2002 to his phone number ending in 7400. Calamaras' full phone number will be provided to counsel for Re/Max during discovery, said his complaint. He’s not providing it in the complaint, “a public document, to prevent further unwanted and unauthorized calls” and texts, “and further intrusion into his phone,” it said.

Plaintiff Lee Abrahamian and defendant loanDepot agreed to stay discovery in Abrahamian’s Telephone Consumer Protection Act class action pending resolution of loanDepot’s forthcoming motions to dismiss the complaint and to strike Abrahamian’s class allegations, said their joint stipulation Thursday (docket 2:23-cv-00728) in U.S. District Court for Arizona in Phoenix. LoanDepot expected to file those motions by Monday, said the stipulation. Abrahamian seeks damages for the “illegal and unlawful” text messages and calls that loanDepot made to his cellphone number, which has been listed on the national do not call registry since October 2007, said his July 24 first amended complaint.

Plaintiff Lee Cunningham’s case against Southern Power for alleged Telephone Consumer Protection Act wrongdoing shouldn’t be “complicated,” said the utility’s filing Wednesday (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. It was responding to the pro se plaintiff’s July 20 opposition to a magistrate judge’s recommendations that his case should be dismissed because his claims are frivolous (see 2307210018). Cunningham “acknowledged in open court” that his TCPA allegations “concern his account with Alabama Power,” said the utility. But Cunningham didn’t sue Alabama, instead suing Southern Power, which doesn’t engage in consumer telemarketing or debt collections, it said. Despite repeated opportunities “to correct this apparent error,” Cunningham “doggedly refused to do so,” it said: “He continues to insist on proceeding against Southern Power in the face of the undisputed evidence that Southern Power had no involvement in the conduct at issue.” Cunningham’s objection to the magistrate judge’s recommendations “fails to show that he has a meritorious basis, in fact or in law, for proceeding against Southern Power,” it said. “Indeed, his entire objection essentially reduces to his continued insistence on a fact about which he has no knowledge, and which is moreover readily and demonstrably untrue,” it said. Cunningham, “in short,” has sued the wrong party “and continues to pursue meritless claims against Southern Power,” it said. His opposition should be overruled, and the court should adopt the magistrate judge’s recommendations and dismiss the case, it said.

Ethos Life Insurance Services began inundating plaintiff Kelly Pinn, an Irving, Texas, resident, with telemarketing calls in October to a cellphone number listed on the national do not call registry since February 2009, alleged her Telephone Consumer Protection Act class action Wednesday (docket 3:23-cv-03869) in U.S. District Court for Northern California in San Francisco. Ethos placed the calls to solicit Pinn for “final expense” funeral insurance, but she’s in her 40s and has “never been in the market” for burial coverage, said her complaint. “Having become wise to the opaque nature of the telemarketing industry, Pinn has learned the only way to ascertain the true identities of telemarketers is to feign interest in the products or services being sold,” it said. She did just that after receiving many calls, and stayed on the line “despite the morbid nature of what was being sold,” it said. Pinn found the repeated calls “annoying, frustrating, upsetting, harassing, and an invasion of her privacy,” it said. The calls persisted despite Pinn’s multiple demands that they stop, it said.

Plaintiff Thomas Gebka in the case against State Farm for alleged Telephone Consumer Protection Act wrongdoing believes the parties will need discovery about the identity of class members “before they can engage in meaningful settlement negotiations,” said a joint discovery plan Tuesday (docket 1:22-cv-05546) in U.S. District Court for Northern Illinois in Chicago. Gebka doesn’t believe a settlement conference “would be productive before such discovery occurs,” said the joint report: “To date, the parties have not discussed the possibility of settlement.” State Farm agrees no settlement discussions occurred and recognizes Gebka’s request for discovery, it said: “State Farm notes, however, that the identity of any putative class members should not be needed.” State Farm proposes that initial discovery, including expert discovery, “focus on the issues relating to whether a class may be certified,” it said. State Farm asserts Gebka doesn’t need discovery “relating to 19,000 agents to determine whether a class could be certified,” it said. Gebka alleges that “myriad” State Farm agencies made prerecorded voice and other telemarketing calls at the “behest” of State Farm to numbers on the national do not call registry to generate leads via vendors that State Farm “encouraged its agencies to use and recommended they use” (see 2302210008).

Pro se plaintiff Lucas Horton ordered a process server to send his Telephone Consumer Protection Act complaint via certified mail July 13 to the defendant Democratic Victory Fund (DVF) PAC, but he hasn’t received the certified return mail receipt from the postal service, said Horton’s filing Monday (docket 3:22-cv-02913) in U.S. District Court for Northern Texas in Dallas. Horton plans to file a motion for default judgment against DVF once he receives the receipt, said his filing. U.S. Magistrate Judge Rebecca Rutherford, in a July 10 signed order, scolded Horton for the improper service of his complaint on DVF by mailing the defendant the complaint himself. “Federal and Texas rules state that under no circumstances is a party permitted to themselves serve the defendants,” said her order. Horton’s Dec. 29 complaint alleges the fundraising and telemarketing frenzy to support Sen. Raphael Warnock, D-Ga., in his Dec. 8 runoff against Republican Herschel Walker caused DVF to violate the TCPA when it inundated the public with thousands of texts a day to people who aren’t registered to vote, or aren’t of voting age (see 2301030001). The DVF came in default when it failed to answer Horton’s complaint by April 17.

U.S. District Judge Charles Kocoras for Northern Illinois in Chicago scheduled a status conference Sept. 5 at 10:10 a.m. CDT in the July 7 Telephone Consumer Protection Act class action against Allstate, said a docket entry notification Friday (docket 1:23-cv-04385). Four plaintiffs allege Allstate engages and authorizes insurance agents across the country to place telemarketing calls to thousands of consumers to promote its insurance products and services. They allege the calls use prerecorded or artificial voices, and are placed to numbers registered on the national do not call list, all in violation of the TCPA (see 2307100007)