Dominion Energy generates substantial profits “from soliciting potential customers through telemarketing in markets where consumers have a choice as to what utility company they use,” alleged plaintiffs Terry Galyean and Gregg Snare in a Telephone Consumer Protection Act class action Thursday (docket 3:23-cv-00477) in U.S. District Court for Eastern Virginia in Richmond. Dominion conducted “a wide-scale calling campaign, repeatedly making unsolicited telemarketing calls” in violation of “applicable federal law,” it said. Due to Dominion’s unlawful acts, the plaintiffs and their proposed class members “have suffered harm,” including lost time, loss of the use of their phones as the calls came in, involuntary phone charges, involuntary electrical charges due to the increased battery use necessitated by the calls and mental and emotional distress, it said. The facts as they concern each named plaintiff “are indicative and exemplary of a wider pattern of knowing and willful violations of the TCPA and its associated regulations,” it said. Both plaintiffs had their numbers listed on the national do not call registry for at least five years, but the calls from Dominion never stopped, said their complaint.

Plaintiff Alan Grochowski reached a settlement in principle with defendant National Tax Advisory Services in the class action in which Grochowski alleged the tax-relief company was guilty of Telephone Consumer Protection Act and Florida Telephone Solicitation Act wrongdoing (see 2307070018), said Grochowski’s notice of settlement Thursday (docket 2:23-cv-14200) in U.S. District Court for Southern Florida in Fort Pierce. The parties request 60 days to finalize the settlement and anticipate filing a joint motion of dismissal with prejudice on Grochowski’s individual claims and without prejudice on the claims of the putative class, said the notice.

Arcadia Power is engaged in a “scheme” to lure Massachusetts consumers “to subscribe to renewable energy programs through illegal telemarketing activities,” in violation of the Telephone Consumer Protection Act, the Massachusetts Telephone Solicitation Act and the Massachusetts Consumer Protection Act, alleged plaintiff Robert Doane’s complaint Wednesday (docket 1:23-cv-11679) in U.S. District Court for Massachusetts in Boston. In its programs to enroll new residential customers, Arcadia “repeatedly, harassingly, deceptively, and illegally placed hundreds of thousands of calls to Massachusetts consumers,” said the complaint. It uses prerecorded messages, caller-ID spoofing and automatic telephone dialing systems, it said. During its telemarketing calls, Arcadia “falsely represents” that it’s working for the customer’s utility provider, and is making a verification call, “as opposed to cold calling -- which is in fact what it is doing,” it said. Due to its “unlawful business practices,” Arcadia has and continues to be “the subject of numerous consumer complaints,” it said. The complaint alleges plaintiff Doane received “scores” of unwanted calls from Arcadia during 2022.

State Farm can’t be held vicariously liable for the alleged insurance solicitation phone calls in plaintiff Thomas Gebka’s amended Telephone Consumer Protection Act complaint, said the insurer's answer Wednesday (docket 1:22-cv-05546) in U.S. District Court for Northern Illinois in Chicago. Gebka filed his amended complaint Dec. 23, but briefing was held in abeyance as the parties awaited the decision from U.S. District Judge John Kness on State Farm’s motion to dismiss. The judge denied the motion July 12 (see 2307120033). No State Farm “direct agency, sub-agency, apparent authority, or ratification theory of liability” supports Gebka’s TCPA claims against State Farm, said the insurer. The alleged calls weren’t made on behalf of State Farm, “especially when the same lead information was also sold to State Farm’s competitors,” it said. Gebka’s claims also are barred “in whole or in part by the acts and/or omissions of one or more third parties over which State Farm had no control,” it said.

Pro se plaintiff-appellant Laura Hammett's opening brief is due Oct. 5 in her appeal of a district court’s June 15 final judgment granting summary judgment for defendant-appellee Portfolio Recovery Associates (PRA), said a revised appeal briefing schedule order Tuesday (docket 23-2638) in the 8th U.S. Circuit Court of Appeals. Hammett’s April 2021 complaint alleged PRA hounded her with at least 120 “incessant” and “obnoxious” debt collection calls, in violation of the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act. PRA’s answering brief is due Nov. 6, and Hammett’s reply brief 21 days later, said the order.

Financial services company Paychex called a consumer’s cellphone numerous times from February through July, soliciting him for its services, though his phone number is listed on the national do not call registry, alleged a Telephone Consumer Protection Act class action Tuesday (docket 1:23-cv-00734) in U.S. District Court for Western New York in Buffalo. Plaintiff Daniel Burton of New Prague, Minnesota, received a prerecorded call Feb. 28 from a number registered to Paychex, said Burton, who called the number that came up on his phone’s caller ID. Burton told the Paychex representative he spoke to he wasn’t interested in additional services or products and to remove him from the marketing list, but the calls continued in March, April, May, June and July. Burton called Paychex’s Eagan, Minnesota, branch May 31 and asked that the calls stop, and he received an email June 1 saying he had been added to the company’s internal do not call list, said the complaint. He received more solicitation calls June 20, June 29, and July 1 and 3, it said. Paychex didn’t have written do-not-call policies or procedures at the time of the calls to Burton, said the complaint. The plaintiff claims his privacy was improperly invaded, that Paychex’s calls “temporarily seized and trespassed” on his phone and that he was forced to divert attention from other activities to address the unwanted calls. Paychex’s calls were “annoying and a nuisance” and wasted his and class members’ time, the complaint said. Burton seeks injunctive and equitable relief and treble statutory damages of up to $1,500 per call.

The 7th U.S. Circuit Court of Appeals affirmed the district court’s dismissal of a Telephone Consumer Protection Act complaint for failure to state a claim, in an opinion Monday (docket 22-1304), concluding the two faxes Elanco Animal Health sent to the Ambassador Animal Hospital didn’t constitute unsolicited advertisements under the TCPA. The 7th Circuit said the faxes don’t indicate, directly or indirectly, “to a reasonable recipient that Elanco was promoting or selling some good, service, or property as required by the TCPA.” The “sole question” in the case was whether the two faxes Elanco sent to Ambassador inviting the hospital’s veterinarians to two free dinner educational seminars for which continuing education credits had been approved fall within the TCPA’s definition of an unsolicited ad, said the opinion. Ambassador argued they do because Elanco’s goal was to advertise the commercial availability or quality of its goods or services. The 7th Circuit disagreed, saying none of the features of the two faxes “transformed Elanco’s invitations to free dinners and continuing education programs into advertisements for a good, service, or property.” The TCPA doesn’t go so far “as to prohibit sending faxes on company letterhead to promote free education on topics that relate to the sender’s business,” said the opinion. It prohibits advertising products or services, it said: “Even if Elanco targeted veterinarians familiar with its products or directed RSVPs to individuals in the marketing or sales departments, Elanco’s faxes did not contain the promotional quality necessary for an advertisement.”

The harm associated with an unwanted text message “shares a close relationship with the harm underlying the tort of intrusion upon seclusion,” said an 11th U.S. Circuit Court of Appeals opinion Monday (docket 21-10199), saying plaintiff Susan Drazen suffered a “concrete harm” under the Telephone Consumer Protection Act when she received only a single text message solicitation from GoDaddy. The harms “are similar in kind, and the receipt of an unwanted text message causes a concrete injury,” said the opinion. While an unwanted text message “is insufficiently offensive to satisfy the common law’s elements, Congress has used its lawmaking powers to recognize a lower quantum of injury necessary to bring a claim under the TCPA,” it said. The 11th Circuit disagreed with GoDaddy’s contention that Drazen and members of her class who received only a single text message didn’t suffer an injury that has a close relationship to the injury associated with intrusion upon seclusion. The Constitution “empowers Congress to decide what degree of harm is enough so long as that harm is similar in kind to a traditional harm,” said the opinion. “That’s exactly what Congress did in the TCPA when it provided a cause of action to redress the harm that unwanted telemarketing texts and phone calls cause,” it said.

Plaintiff Maria Echols’ class action against QuoteLab, “erroneously named” as MediaAlpha in a June TCPA complaint (see 2306150046), should be dismissed with prejudice and the class certification and requested relief denied, said defendant Adroit Health in its Friday response (docket 6:23-cv-00758) in U.S. District Court for Northern Alabama in Jasper. Echols failed to exercise reasonable efforts to mitigate alleged damages, consented to all conditions alleged to have caused harm, and damages were caused by intervening and superseding acts or negligence of parties other than the defendant, said the response. Echols’ claims are barred because of the doctrine of waiver, unclean hands, estoppel and laches; the First, Fifth, Sixth, Eighth and Fourteenth amendments and Article I of the U.S. Constitution; and by the “Safe Harbor” provision under the TCPA, it said. Echols alleges in her July complaint that Adroit Health, via telemarketer and co-defendant MediaAlpha, made over 20 calls to her over a three-day period in May from a number with a spoofed area code despite her listing on the do not call registry. Plaintiff and class members were harmed by the defendants’ acts because their privacy was violated, they were “annoyed and harassed,” and they were harmed by use of their telephone power and network bandwidth and by the intrusion on their phone line that occupied it from receiving “legitimate communications,” the complaint alleged. Echols seeks up to treble damages as provided by the TCPA of up to $1,500 for each violation.

Defendant NextGen Leads runs a campaign to market its insurance services through the use of prerecorded telemarketing calls to numbers on the national do not call registry, in “plain violation” of the Telephone Consumer Protection Act, alleged plaintiff Cynthia Powell’s class action Thursday (docket 1:23-cv-00272) in U.S. District Court for Southern Alabama in Mobile. Because the calls were transmitted “using technology capable of generating thousands of similar calls per day,” Powell, an Alabama resident, sues “on behalf of a proposed nationwide class of other persons who received similar calls,” it said. At no point has Powell “sought out or solicited” NextGen’s services before receiving the prerecorded calls on her cellphone, it said. Her complaint estimates she received at least five calls from NextGen since July 7. Powell and members of her proposed class have been harmed by the defendant’s conduct “because their privacy has been violated and they were annoyed and harassed,” it said.