Timeshare company Wyndham Destinations called a customer more than 50 times about payment for a loan after receiving a cease-and-desist letter from her attorney, alleged San Diego County plaintiff Mariana Munoz in U.S. District Court for Southern California in San Diego. The Wednesday robocalling complaint (docket 3:23-cv-00342) claims Wyndham violated the Telephone Consumer Protection Act and California’s Rosenthal Fair Debt Collection Practices Act. Wyndham representatives used an automatic telephone dialing system to place calls after Munoz experienced financial hardship and defaulted on her regular monthly payments, the complaint said. The plaintiff seeks actual and statutory damages, reasonable attorneys’ fees and legal costs, plus injunctive relief.

U.S. District Judge George Hanks for Southern Texas in Houston denied “without prejudice to being reasserted at trial” the cross-motions for summary judgment filed in May by defendant Scott Shapiro and the plaintiffs in the seven-state Telephone Consumer Protection Act robocalling case, said an order he signed Tuesday (docket 4:20-cv-02021). Shapiro’s motion asserted the states couldn’t establish one or more essential elements in each of their claims against him. The states maintain Shapiro was responsible for nearly 40% of the 742.3 million calls made to consumers whose numbers were on the national do not call registry. Hanks indicated during a Jan. 31 status conference he's ready for the case to proceed to trial (see 2302010027).

Allstate removed to U.S. District Court for Eastern Ohio in Cleveland a Jan. 19 complaint in Lake County Court of Common Pleas in which plaintiff Bryan Reo accuses the insurer of Telephone Consumer Protection Act wrongdoing, said its notice of removal Tuesday (docket 1:23-cv-00329). The Lake County resident alleges Allstate got his contact information through improper means and repeatedly called him on his cellphone to solicit for insurance products and services, said the notice. Reo seeks to remand the case to state court, Allstate asks that it be permitted to brief and argue the issue of this removal before any remand order issues, it said. If the court decides remand is proper, Allstate asks the court to retain jurisdiction and allow Allstate to file a motion asking the court “to certify any remand order for interlocutory review” by the 6th U.S. Circuit Court of Appeals, it said. Reo’s complaint alleges Allstate called him repeatedly, despite his number being listed on the national do not call registry and on Allstate’s internal do not call list. Reo’s latest complaint is the third time he sued Allstate for TCPA violations, it said. Allstate appears to have “a flagrant disregard” for TCPA compliance, it said.

Plaintiff Thomas Gebka’s amended complaint “sufficiently pleads” that State Farm is “vicariously liable” for the Telephone Consumer Protection Act violations it’s alleged to have committed, said Gebka’s opposition Mondau (docket 1:22-cv-05546) in U.S. District Court for Northern Illinois in Chicago to the insurer’s Jan. 6 motion to dismiss (see 2301090024). At the “behest” of State Farm, “myriad” State Farm agencies made prerecorded voice and other telemarketing calls 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,” said Gebka’s response. The State Farm agencies “had State Farm’s actual authority to appoint subagents for telemarketing and soliciting” prospective insurance customers, it said. Gebka has standing “because he alleges he received seven unsolicited telemarketing calls that invaded his privacy rights, which easily satisfies Article III,” it said. State Farm “was extensively involved in its agencies’ operations, requiring them to follow detailed standards it set and could change at any time without notice,” it said. State Farm also had “the right to monitor their compliance with its standards and terminate the relationship for noncompliance,” it said.

Humana hired Healthhubb, a telemarketing vendor, to make incessant insurance solicitation calls to Chicago resident Antionette Woodard, though her number was listed on the national do not call registry since Sept. 25, said her class action Friday (docket 1:23-cv-00979) in U.S. District Court for Northern Illinois to enforce the consumer-privacy provisions of the Telephone Consumer Protection Act. “Because telemarketing calls can be made to thousands or even millions of individuals,” Woodard brings this action on behalf of a proposed nationwide class of other persons who received similar calls from Humana, said her complaint. For more than 20 years, the FCC has explained that its rules generally establish that the party on whose behalf a solicitation is made bears ultimate responsibility for any violations, said the complaint. Humana also “ratified” Healthubb’s wrongful conduct “by accepting the benefits of Healthubb’s calling activity,” it said. Woodard and members of the proposed class are “entitled to and do seek injunctive relief prohibiting Humana from making telemarketing calls (whether directly or via agents)” to numbers on the DNC registry, except for emergency purposes, said the complaint. Humana didn’t comment Friday.

Pro se plaintiff Lee Cunningham must show cause by Feb. 28 why the U.S. District Court for Middle Alabama in Montgomery is the proper venue for his Telephone Consumer Protection Act complaint against Southern Power, said an order signed Tuesday (docket 2:22-cv-00621) by U.S. Magistrate Judge Chad Bryan. Southern Power’s answer said Cunningham lives in Bibb County, which is in the Northern District of Alabama, “and therefore the alleged conduct at issue, which Southern Power denies, presumably occurred there.” Southern Power also said its principal place of business isn't within the Middle District of Alabama. Cunningham needs to “specifically explain” whether a substantial part of the conduct giving rise to his claims “occurred within one or more counties comprising the Middle District of Alabama,” said Bryan’s order. The show cause order is necessary amid the venue challenge raised in Southern Power’s answer, coupled with a lack of detail in the complaint about precisely where the unlawful TCPA conduct took place, it said.

The U.S. District Court for Eastern Pennsylvania “has supplemental jurisdiction of the common law claims” of plaintiff Mark Fidanza and his proposed putative class, said his first amended Telephone Consumer Protection Act complaint Tuesday (docket 2:22-cv-05185). His claims “are so related to federal claims in the action that they form part of the same case or controversy under Article III” of the Constitution, it said. Fidanza alleges the Republican Committee of Chester County, Pennsylvania, bombarded him with dozens of unsolicited text messages in the run-up to the Nov. 8 election even though he’s registered to vote in the state's Montgomery County and never voted in Chester County. His original Dec. 28 complaint (see 2212280028) didn’t contain the language on supplemental jurisdiction. The GOP committee hasn't answered Fidanza's original complaint.

Contrary to plaintiff Thomas Gebka’s assertions in his Feb. 7 opposition to State Farm’s motions to stay or phase discovery in Gebka’s Telephone Consumer Protection Act complaint (see 2302080017), State Farm’s motions are “not a boilerplate request,” said the insurer’s reply Monday (docket 1:22-cv-05546) in U.S. District Court for Northern Illinois in Chicago. Gebka “pled no facts to establish the threshold issue of standing to sue State Farm,” it said. He instead issued “tremendously broad discovery in search of a claim among State Farm’s 19,000 independent contractor agents,” it said. Gebka’s asserted prejudice arising from a brief delay of discovery “rings hollow” since he waited more than a year to file suit against State Farm “until he resolved his lawsuit against Allstate involving some of the same alleged phone calls” made in violation of the TCPA, it said. Gebka’s opposition to a discovery stay doesn’t explain “how he would be unduly prejudiced or tactically disadvantaged,” said State Farm. “Nor does it disprove State Farm’s arguments that the stay will simplify the issues and reduce the burden of the litigation.” State Farm is aware that a motion to dismiss does not automatically entitle it to a stay of discovery, it said. But Gebka’s arguments shouldn’t persuade the court to act “in a manner inconsistent with many other courts,” it said. Gebka’s opposition also doesn’t disprove State Farm’s argument that phased discovery “is warranted here” if the request for a stay is denied, it said. Courts prefer phasing or “bifurcating” discovery where such a process would “enhance expediency by allowing the court to make a timely resolution on a motion, it said. Courts also see bifurcation as improving judicial economy “by potentially limiting the discovery necessary for the entire case,” it said: “Phasing discovery is appropriate in this case as it would require less expansive and burdensome discovery and would allow the timely and efficient resolution of the class certification issue in the first stage.”

Real estate agent Christopher Petti violated the Telephone Consumer Protection Act by using calling technology to try to sell real estate services to consumers without their consent, including those subscribed to the national do not call registry, alleged a Monday class action (docket 7:23-cv-01203) in U.S. District Court for Southern New York in White Plains. Plaintiff Jonathan Weinberg of Las Vegas received seven unsolicited text messages Oct. 24-Nov. 10 from, or on behalf of, Petti, an agent with Byrne Homes, a Christie’s International real estate firm in Westchester County, New York, said the complaint. The plaintiff’s attorney called the number associated with the text messages, leading to Byrne Homes agent Mary Jo Ann Byrne, it said. One of the messages, addressed simply to Steven, asked Weinberg to verify his email address so the agent could tailor a home search to his needs, but Weinberg “has never dealt with a Christie’s agent” and “does not know who Steven is.” Weinberg has never used the email address shown on the text message. The unauthorized solicitations -- related to new home searches, open houses and mortgage products -- were a nuisance to Weinberg, an invasion of privacy and caused “wear and tear” on his phone, including battery consumption, said the complaint. The plaintiff seeks an injunction requiring Petti to cease all unsolicited calling activity, plus an award of damages and costs.

Days after pro se plaintiff Lee Cunningham sought a default judgment against Southern Power for failing to answer his Oct. 19 Telephone Consumer Protection Act complaint (see 2302060039), the utility responded Wednesday with a denial (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery that it does business as Alabama Power, as Cunningham alleges. Southern Power and Alabama Power are separate companies, and Southern Power “denies that it has had any relationship or contact” with Cunningham, it said. Southern Power is a wholesale power generator, “and does not have direct business dealings with consumers,” it said. It “further denies” it violated the TCPA because it didn't place any calls to Cunningham, it said. His TCPA claim is barred for lack of Article III standing because he “has not suffered an injury in fact that is either particularized or concrete,” it said. The TCPA’s statutory damages terms violate the due process clause of the Fifth and 14th amendments, which prohibit the imposition of “grossly excessive or arbitrary punishment on a defendant,” it said. Cunningham of Brierfield, Alabama, alleges Southern Power inundated him with debt-collection calls “with such frequency as can reasonably be expected to harass.”