The Jimmy Buffett-themed Margaritaville Enterprises is violating the Telephone Consumer Protection Act when it sends telemarketing text messages without consent to consumers who registered their numbers on the do not call registry and to those who have specifically asked Margaritaville to stop texting them, alleged a class action Wednesday (docket 6:23-cv-00223) in U.S. District Court for Middle Florida in Orlando. Plaintiff Racheal Paul, an Athens, Georgia, resident, listed her cellphone number on the DNC registry in April 2014, yet she received two text solicitations on Jan. 29 offering a free appetizer if she visited a Margaritaville restaurant, said her complaint. She received a total of six text messages that day despite several times texting the company to stop, it said. Paul has never done business with Margaritaville and never gave the company her phone number, it said. She seeks an award of damages and costs, plus an injunction requiring Margaritaville “to cease all unsolicited text message activity,” it said. The company didn’t comment.

Telephone Consumer Protection Act defendant State Farm, in arguing discovery should be stayed pending a ruling on its motion to dismiss (see 2302010001), “points to nothing about this case that makes it different than any other case in which a motion to dismiss is pending,” said plaintiff Thomas Gebka’s opposition Tuesday (docket 1:22-cv-05546) in U.S. District Court for Northern Illinois in Chicago. The class action against State Farm “is even less of a candidate” than normal for a stay, said the opposition. “This district has already denied a nearly-identical motion to dismiss in a separate case where the claims and vicarious liability allegations were virtually identical to those allegations here,” it said. State Farm offers no specifics to support its “boilerplate arguments” that a stay won't prejudice or tactically disadvantage Gebka’s case, said the opposition. Nor could State Farm offer those specifics amid its arguments that involve Gebka’s strategy “that State Farm knows nothing about,” it said: “The request for a stay should therefore be denied.” State Farm’s alternative request for phased discovery to focus on whether a class can be certified “should likewise be denied,” said the opposition. The specific discovery State Farm objects to, and merits discovery generally, “are needed to determine whether common factual and legal issues predominate” in the TCPA case, it said. A stay will “possibly foreclose the putative class members’ claims by needlessly delaying their resolution,” said the opposition. The case involves telemarketing calls made by State Farm’s “subagents,” including third-party vendors hired by State Farm’s agencies or the third-party call centers those vendors used to make the calls, it said. State Farm’s initial discovery disclosures “did not identify the vendors or anyone further downstream,” and State Farm’s agencies objected to providing that information under subpoena, it said. The third parties in question “are most likely to possess or control the indispensable call records,” but they currently have “no duty to preserve evidence,” said the opposition. It compounds the risk of lost evidence that many vendors and call centers “do not keep call records for very long,” it said. That’s especially true after litigation involving the calls begins, “which means the records identifying the class members are likely already being destroyed in the ordinary course,” it said.

Pro se plaintiff Lee Cunningham seeks the entry of a default judgment against Southern Power for failing to answer his Oct. 19 Telephone Consumer Protection Act complaint (see 2210200064), said his motion Friday (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. Southern was served with the complaint Jan. 11, but no response has been served within the time allowed by law, nor has the defendant sought additional time, said his affidavit. Cunningham of Brierfield, Alabama, alleges Southern inundated him with debt-collection calls “with such frequency as can reasonably be expected to harass.”

Plaintiff Catherine Migliano and defendant Parler seek a discovery stay for 45 days in Migliano’s Telephone Consumer Protection Act complaint (see 2211070053) while the parties discuss settlement, “including possible mediation,” said their joint motion Friday (docket 0:22-cv-61805) in U.S. District Court for Southern Florida in Fort Lauderdale. A temporary discovery stay “would prevent unnecessary expenses and further the interests of speedy resolution of disputes and judicial economy,” it said. Against the Nov. 14 deadline for completing discovery, Migliano served written discovery on Parler, and the parties “engaged in productive and cooperative discussions that have resulted in an extension of Parler’s responses and objections deadline for that written discovery,” said the motion. The litigation is in its early stages, and both sides “jointly move for the requested stay and will not experience prejudice if the joint request is granted,” it said. Parler’s motion to compel Migliano’s dispute to arbitration “is fully briefed, pending, and awaiting the Court’s resolution,” it said. By jointly agreeing to the stay to allow settlement negotiations, including a possible mediation, to take place, neither party “waives any arguments that have been made as to arbitration,” it said.

U.S. District Judge Jose Martinez for Southern Florida issued an order order (docket 1:22-cv-23945) Friday, granting Florida Attorney General Ashley Moody (R) a Thursday request for a seven-day extension, to Feb. 10, to respond to Smartbiz Telecom's motions to dismiss and to join required parties in a Telephone Consumer Protection Act lawsuit. The motion was unopposed. Florida is suing SmartBiz for allegedly violating the TCPA, the FTC's Telemarketing Sales Rule and Florida's Deceptive and Unfair Trade Practice Act. SmartBiz filed the motion to dismiss last month (see 2301230054), “vehemently” disputing all robocalling allegations.

The third known complaint in less than four months alleging Kohl’s violated the Telephone Consumer Protection Act was filed Friday in U.S. District Court for Southern California. Plaintiff Matilde Cowen, a San Diego County resident, fended off calls from Kohl’s debt collection agents often as much as twice a day, sometimes every day, said her complaint (docket 3:23-cv-00199), which also alleges violations of California’s Rosenthal Fair Debt Collection Practices Act. Cowen estimates Kohl’s called more than 150 times in total, after receiving written notice from her lawyers revoking any prior consent to call, it said. Kohl’s didn’t comment Friday. It has defended at least one of the two recent complaints by asserting the TCPA violates the 14th Amendment’s due process clause, and also the Eighth Amendment’s protections against excessive fines (see 2301090028).

It’s not every day that a wireless carrier faces allegations of Telephone Consumer Protection Act wrongdoing, but Stewart, Florida, plaintiff Wesley Todd asserts T-Mobile sent “repeated text messages” to his cellphone number, though it was listed on the do not call registry since May 18. The texts advertised T-Mobile’s promotional offers and encouraged Todd to visit T-Mobile’s website and buy its products, said his complaint Tuesday (docket 2:23-cv-14024) in U.S. District Court for Southern Florida in Fort Pierce. Despite Todd’s “unequivocal instructions” that T-Mobile stop all its texting, T-Mobile continued sending him messages continuously thereafter, alleges his complaint. He makes no allegations of Florida Telephone Solicitation Act wrongdoing.

Defendant-appellant DirecTV asked the 4th U.S. Circuit Court of Appeals Friday to hold their consolidated appeals in abeyance, in a joint motion with plaintiffs-appellees David Vance, Roxy Vance and Carla Shultz. Doing so would enable the execution and approval of a class settlement that “would resolve all the claims asserted in this case,” said their motion (docket 22-2041). The parties reached a settlement deal “in principle” Jan. 26, it said. They're working “on reducing this settlement to a final agreement, which they will then present to the district court for approval,” it said. There's good cause to hold these appeals in abeyance pending approval of the settlement, said the motion. “It would conserve party and judicial resources in the likely event that there will be no further litigation in this case,” it said. “If for any reason the parties do not execute a final settlement agreement or the district court does not approve it,” the parties will promptly inform the 4th Circuit and, if appropriate, ask that it set a new briefing schedule, it said. “No party will be prejudiced by a stay,” it said. DirecTV is appealing the district court’s certification of class members in a December 2017 Telephone Consumer Protection Act complaint. DirecTV also is appealing the lower court’s denial of its motion to compel plaintiff Shultz to arbitration of her TCPA claims. The 4th Circuit consolidated the two appeals in October.

Plaintiff Christa Simmons filed her first amended complaint Sunday alleging Procter & Gamble violated the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act by inundating her with text messages promoting its Oral-B line. Her amended complaint (docket 0:22-cv-61956), in U.S. District Court for Southern Florida in Fort Lauderdale, deletes language in her Oct. 20 original that P&G “engages in telemarketing without the requisite policies and procedures and training required under the TCPA and its implementing regulations.” It adds language missing from the original establishing the Fort Lauderdale federal court as the proper venue. Jurisdiction is proper because Simmons “alleges a national and Florida class, which will result in at least one class member belonging to a different state” than that of P&G, said the amended complaint. P&G argued Jan. 17 that Simmons’ complaint “must be dismissed in its entirety” under the 11th Circuit’s “binding precedent” in Salcedo v. Hanna because she “did not suffer an injury in fact sufficient to confer Article III standing” (see 2301180001).

Jury selection will begin Dec. 15 in the trial of pro se plaintiff Mabel Arredondo’s allegations that loanDepot inundated her with at least 18 unauthorized automated text messages in a three-month period in violation of the Telephone Consumer Protection Act (see 2210250045), said a trial preparation order signed Friday by U.S. District Judge Kathleen Cardone for Western Texas in El Paso. LoanDepot’s defenses rest partly on its assertions that application of the TCPA, as interpreted by the FCC, violates the First Amendment “because such application relies upon content-based restrictions of protected speech” (see 2212200014). The defendant also said the TCPA is “unconstitutionally vague because the restrictions imposed by the TCPA do not give a person of ordinary intelligence adequate notice of the conduct that is prohibited.”