The 9th U.S. Circuit Appeals Court set June 28 oral argument at 9 a.m. PDT in Pasadena, California, in plaintiff-appellant Lucine Trim’s appeal of a lower court’s dismissal of her Telephone Consumer Protection Act complaint against Reward Zone for sending her unwanted telemarketing texts, said an electronic-only notice Sunday (docket 22-55517). Her March 16 reply brief said lines will need to be drawn “over what constitutes” an automatic telephone dialing system and an artificial voice under the TCPA (see 2303170046).

U.S. District Judge Fernando Aenlle-Rocha for Central California in Los Angeles signed an order Wednesday (docket 2:23-cv-00024) vacating all deadlines in plaintiff Christopher Gonzalez’s Telephone Consumer Protection Act lawsuit against Bank of America and dismissing his claims without prejudice. Good cause exists for doing so after Gonzalez filed notice of a settlement in principle last week with the court (see 2304100027), said the order. The court retains jurisdiction to vacate the order and to reopen the case within 60 days if any request by a party to do so makes “a showing of good cause as to why the settlement has not been completed within the 60-day period, what further settlement processes are necessary, and when the party making such a request reasonably expects the process to be concluded,” it said. The order doesn’t preclude the filing within the 60-day period of a stipulation of dismissal with prejudice, which doesn’t require court approval, it said.

To the extent that Liberty Mutual violated the Telephone Consumer Protection Act, which Liberty denies, such violation “was not intentional and was the result of a bona fide error,” said its answer Tuesday (docket 1:23-cv-10569) in U.S. District Court for Massachusetts in Boston to plaintiff Jeffrey Scott’s March 14 class action (see 2303150043). Scott alleges his number has been on the federal do not call registry since August 2010, yet Liberty phoned him eight times to sell him an insurance policy he didn’t want or need. But Scott’s complaint fails to state a claim on which relief may be granted, and his claims fail because he “consented to the communications alleged,” said Liberty’s answer. “Liberty established and implemented with due care reasonable practices and procedures to prevent violations of applicable statutes,” it said.

Telephone Consumer Protection Act plaintiff Racheal Paul and defendant IMCMV Holdings, parent company of Margaritaville restaurants, propose completing discovery by June 2024, in preparation for a three-to-five-day jury trial in January 2025, said their joint case management report Monday (docket 6:23-cv-00223) in U.S. District Court for the Middle District of Florida in Orlando. The parties don’t consent to jurisdiction before a magistrate judge and oppose phased discovery, said the report. Paul’s first amended class action alleges Margaritaville unlawfully sends telemarketing text messages without consent to consumers who registered their numbers on the national do not call registry and to those who specifically asked Margaritaville to stop texting them (see 2303210003). Paul listed her cellphone number on the DNC registry in April 2014, yet she received two text solicitations Jan. 29 offering her a free appetizer if she visited a Margaritaville restaurant, said her complaint.

It’s possible that plaintiff Paul Sapan may move to add a third-party telemarketer as a defendant in his Telephone Consumer Protection Act class action against Diamond Resorts, said a joint scheduling and Rule 26(f) report Monday (docket 8:23-cv-00147) in U.S. District Court for Central California in Santa Ana. The parties had settlement discussions, but their initial positions “were very far apart,” and both sides “elected to continue with case prosecution,” said the report. The parties estimate “at this early point in advance of discovery and motion practice” that a March 2025 jury trial would last five days should Sapan’s proposed class be certified, it said. The trial should be no longer than two or three days “in the event class certification is denied,” it said. Sapan’s Jan. 24 complaint alleges Diamond engages in a scheme to sell timeshares via “cold calls” to residential phone numbers listed on the federal do not call registry (see 2301240064). Diamond denies TCPA wrongdoing, contending Sapan’s number is for business, not residential purposes, and the caller “had an established business relationship with the called party,” said the report.

Plaintiff Christopher Gonzalez reached a settlement in principle with Bank of America on his Telephone Consumer Protection Act claims, said his notice Friday (docket 2:23-cv-00024) in U.S. District Court for Central California in Los Angeles. The parties are now documenting that agreement, and Gonzalez anticipates filing a dismissal of Bank of America within 28 days, once the settlement is finalized, said the notice. Gonzalez’s complaint alleged Bank of America engaged in “abusive and outrageous” debt collection calls, causing him significant “anxiety, frustration and stress” (see 2301050010).

Defendant-appellant DirecTV reached a settlement agreement with plaintiffs-appellees David Vance, Roxie Vance and Carla Shultz in DirecTV’s 4th U.S. Circuit Appeals Court appeal of a district court’s certification of class members in a December 2017 Telephone Consumer Protection Act complaint (see 2303090042), said a joint status report Friday (docket 22-2041). The agreement isn't only on the terms of the settlement but also “on the form and content of various additional documents attached to the agreement, including a preliminary approval order, class notices, and a claim form,” said the report. The parties and their counsel are now signing the finalized agreement, it said. “After all the signatures have been collected, plaintiffs will have two weeks to move for preliminary approval of the agreement in the district court.”

Defendant loanDepot “blatantly ignores” the FCC’s “rulemaking power and the binding nature of FCC orders and regulations” when it moves to dismiss plaintiff Zachary Sawicki’s Telephone Consumer Protection Act first amended complaint (see 2302270042), said Sawicki's response in opposition Friday (docket 2:22-cv-14425) in U.S. District Court for Southern Florida in Fort Pierce. LoanDepot also “blatantly ignores the face” of Sawicki’s complaint, “and unwittingly takes conflicting positions in a futile effort to fit a square peg in a round hole,” it said. The motion to dismiss “is without merit and must be denied in its entirety,” it said. The facts that gave rise to Sawicki’s TCPA claims “are as simple as they come,” it said. LoanDepot began placing “voluminous solicitation calls” to Sawicki’s cellphone number in November, and continued “pounding” the number even after he asked the company to stop, it said. On loanDepot’s contention that Sawicki’s do not call claim must fail because Sawicki didn’t specifically allege he personally registered his number on the national DNC registry. Its “splitting-hairs argument must fail,” said the opposition. Sawicki’s allegation his number was registered on the DNC registry “is objectively sufficient to sustain his DNC claim” because the court “must construe all reasonable inferences” in the plaintiff’s favor, it said. “Here, the only logical and reasonable inference that can be drawn” is that Sawicki himself registered his number on the DNC registry, it said. Inferring that a third party registered Sawicki’s number on the DNC registry “would be an unreasonable inference” construed in the defendant’s favor, it said.

The court should deny A Marketing Resource’s motion to strike plaintiff’s class allegations in a Telephone Consumer Protection Act class action, said a Friday response (docket 2:22-cv-01464) in U.S. District Court for Eastern Wisconsin in Milwaukee. Zoulek was responding to the Gannett company’s March 3 motion to strike allegations due to a subscriber’s previous business relationship with its newspapers (2303070051). Plaintiff Jean Zoulek, a Milwaukee Journal Sentinel subscriber for 40 years, canceled her subscription in June and soon began receiving phone calls from AMR asking her to renew, even after she communicated do-not-call requests, said the complaint. She seeks an award of actual and/or statutory damages and costs, legal fees and an injunction requiring the Gannett company to cease all unsolicited calling activity on behalf of herself, the do not call registry class and the company’s internal do not call class. AMR’s motion to strike class allegations is based on the "false premise” that at this stage of proceedings the court can “determinatively conclude” that membership in plaintiff’s classes “cannot be determined based on common, objective factual criteria” such as whether AMR’s business records reflect calls with a specific disposition code like “do not call,” said the response. “Based exclusively on the pleadings, AMR cannot establish that it will be impossible to certify the classes Plaintiff alleges regardless of the records AMR may maintain or the facts that Plaintiff may prove,” it said.

Plaintiff Paul Sapan’s allegations that LendingTree and its agents don’t check the federal do not call registry before making calls to sell its financial services (see 2301170071) should be dismissed, said LendingTree’s motion Friday (docket 8:23-cv-00071) in U.S. District Court for Central California in Santa Ana. The Santa Ana court lacks personal jurisdiction over LendingTree, plus Sapan premises his action “on the mistaken belief that he received unwanted phone calls from individuals or entities acting on LendingTree’s behalf, it said. He alleges an individual named George, representing a vendor named National Mortgage Advantage, “was LendingTree’s agent or otherwise acting as LendingTree’s proxy,” it said. But LendingTree has no knowledge of National Mortgage Advantage, “and did not purposefully direct its conduct towards the forum in a manner sufficient to justify this Court’s exercise of jurisdiction,” it said.