Seven weeks to the day after U.S. District Judge Julien Neals for New Jersey in Newark denied Plymouth Rock’s motion to dismiss plaintiff Robert Clough’s Telephone Consumer Protection Act class action (see 2401030051), the New Jersey insurance company reacted aggressively on two fronts in its answer Friday (docket 2:21-cv-19343). Plymouth Rock first countersued Clough for violations of the New Jersey Insurance Fraud Prevention Act, alleging that he runs a “cottage industry” of filing “sham” TCPA lawsuits with the class action against Plymouth Rock just the latest. It then filed a third-party complaint alleging that its call vendor, ConnectThe Calls.com, and its owner, Marlen Rapoport, violated the terms of an October 2019 contract that bars the vendor from violating the TCPA and in which the vendor agreed to indemnify Plymouth Rock against legal peril. The counterclaim alleges that Clough falsely misrepresented his interest seeking automobile insurance policies and quotes, while fraudulently using a third person’s identity without permission. Clough did so “solely and expressly for the purpose of concocting an otherwise meritless claim” under the TCPA. Clough’s fraudulent actions “are prohibited under New Jersey common law and statutes,” it said. Clough’s fraud has caused actual harm to Plymouth Rock, said the counterclaim. The insurer “has been compelled to expend time and resources in connection with the handling of Clough’s fraudulent telephonic solicitations for an automobile insurance quote proposal in which he had no genuine interest,” it said. Clough’s fraud has caused further actual harm to Plymouth Rock in responding to such false claims “and defending against the concocted lawsuits,” including the litigation costs and fees it has been forced to pay, it said. In the third-party complaint, Plymouth Rock alleges that Rapoport and the vendor are liable for all debts and obligations “under the doctrines of veil piercing, alter ego, and successor liability.” Neither Rapoport nor the vendor “has taken any measures to defend or indemnify Plymouth Rock” against Clough’s claims in the TCPA complaint, it said. While denying all liability as to any and all claims in Clough’s complaint, Plymouth Rock “is entitled to a defense, indemnification, contribution, and breach of contract damages” from Rapoport and the vendor, it said.

Aflac violated the Telephone Consumer Protection Act by placing a single telemarketing robocall Sept. 7 to Stewart Smith, despite his cellphone number having been listed on the national do not call registry since June 2010, alleged Smith’s class action Thursday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia. In Aflac’s “overzealous attempt” to market its motor vehicle warranties, it willfully or knowingly made, and continues to make, unsolicited telemarketing phone calls to numbers listed on the DNC registry, said the complaint. Through its conduct, Aflac has invaded Smith’s privacy and that of his class members, it said. At no point did Smith provide Aflac with his express written consent to be called for telemarketing purposes, it said. As a result of the unlawful robocall, Smith “experienced frustration, annoyance, irritation and a sense that his privacy had been invaded,” it said.

The office of Florida Attorney General Ashley Moody (R) and robocall defendant Smartbiz Telecom seek a continuance of their trial for at least 90 days, said their joint motion Feb. 13 for continuance (docket 1:22-cv-23945) in U.S. District Court for Southern Florida in Miami. The court on Nov. 30 rescheduled the trial to start during the two-week period beginning March 4. The trial is set for a five-day period and will involve “novel and complex technical and legal issues” unique to the telecom field and federal law and regulation, it said. The continuance is being requested so that Smartbiz can secure additional counsel for the trial, and numerous technical issues in the cross motions for summary judgment can be resolved on their merits at trial, said the motion. The extension is sought “in good faith and not for purposes of delay.” Moody’s December 2022 complaint alleges that Smartbiz is “one of the most prolific transmitters of illegal robocalls” in the U.S., and that the VoIP company violated the Telemarketing and Consumer Fraud and Abuse Prevention Act and other statutes, plus the FTC's Telemarketing Sales Rule (see 2212060034).

U.S. District Judge Nancy Edmunds for Eastern Michigan in Detroit ordered Carlos Delgadillo to show cause in writing by Feb. 21 why his Telephone Consumer Protection Act class action against automaker FCA US shouldn’t be dismissed for failure to prosecute, said the judge’s signed order Wednesday (docket 2:24-cv-10039). Failure to respond may result in the case's dismissal, said the order. Delgadillo alleges that FCA violates the TCPA by placing prerecorded calls without consent to a group of individuals for whom the message isn't applicable and who requested not to receive the calls (see 2401090001). While calls designed to notify consumers about airbag recalls for their Chrysler cars are important, FCA is calling "a whole host of individuals who never owned a car that the recall is relevant to," including Delgadillo in this case, he alleges.

Core Home Security, a security installation and monitoring company, violates the Telephone Consumer Protection Act and Florida Telephone Solicitation Act by placing unwanted telemarketing calls to consumers who don’t want to receive them and gave the company no consent to be called, alleged Victoria Starr-Harris’ class action Wednesday (docket 0:24-cv-60250) in U.S. District Court for Southern Florida in Fort Lauderdale. Starr-Harris' residential cellphone number has been listed on the national do not call registry since October 2016, yet she began receiving prerecorded telemarketing calls to that number on June 12 from Core, promoting its security monitoring services, said her complaint. At no point did the Davie, Florida, resident give the company her express written consent to be contacted, as the TCPA requires, it said. The company’s unsolicited phone calls and text messages caused her “actual harm,” including invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass and conversion, it said. The calls also inconvenienced her and caused disruption to her daily life, it said. She estimates that she spent “numerous hours” investigating the unwanted phone calls, including how they obtained her number and who the defendant was, it said. The 11th U.S. Circuit Court of Appeals, in its July 24 en banc decision in Drazen v. GoDaddy.com (docket 21-10199), held that plaintiffs have a concrete Article III injury under the TCPA with only a single unwanted call or text message from a defendant, said the complaint.

U.S. District Judge Paula Xinis for Maryland in Greenbelt denied motions for summary judgment from Telephone Consumer Protection Act co-defendants Geico and its vendor ExamWorks against Michael Smith, said her signed memorandum opinion Wednesday (docket 8:21-cv-02746). Smith alleges ExamWorks inundated his cellphone with prerecorded telemarketing robocalls it made on Geico’s behalf (see 2308110043). Smith’s testimony “is sufficient to defeat summary judgment on the question of consent,” said Xinis’ order. Alternatively, even if somehow the court could grant summary judgment on whether Smith’s initial furnishing of his phone number qualifies as express prior consent, “a genuine issue of fact exists as to whether Smith immediately revoked that consent through his counsel,” it said.

Though plaintiff Aaron Rapp’s cellphone number has been listed on the national do not call registry for almost 20 years, the National Agents Alliance made numerous unauthorized phone calls to that number for the purpose of soliciting insurance business, said Rapp’s Telephone Consumer Protection Act class action Tuesday (docket1:24-cv-00068) in U.S. District Court for Northern Indiana in Fort Wayne. The alliance recruits, screens and trains independent contractors to sell insurance for various insurance carriers, said the complaint. It has been recognized as one of the most prominent independent marketing organizations in the U.S. and has sold more than $1.6 billion worth of life insurance policies to American consumers, Rapp's complaint said. But the alliance “has sought to grow its business by flagrantly disregarding the TCPA and its governing regulations,” said the complaint. Rapp didn’t provide the alliance with his cellphone number at any point in time, nor did the Indiana resident give permission for the alliance to make phone solicitations to him or to send or leave him telemarketing messages, it said. The alliance failed to establish and implement “reasonable practices and procedures” to effectively prevent phone solicitations to Rapp and other similarly situated persons, in violation of the TCPA’s implementing regulations, said the complaint. The alliance has “intentionally and repeatedly violated” the TCPA, and Rapp “properly alleges injuries in fact,” which are traceable to the alliance’s unlawful acts, “and are likely to be redressed by a favorable judicial decision,” it said.

Paul Sapan’s Oct. 20 class action alleging that Shore Capital sells mortgage services via "cold calls" to residential phone numbers listed for years on the federal do not call registry (see 2310210002) should be dismissed for failure to state a claim, said Shore’s motion Tuesday (docket 8:23-cv-01974) in U.S. District Court for Central California in Santa Ana. While Sapan’s complaint “makes particular (albeit inconsistent) allegations” regarding Capital Mortgage, it contains no allegations regarding Shore Capital, said the motion. Since there are no charging allegations against Shore Capital other than notes that Sapan attached to his complaint, and no allegation that substantively ties Shore Capital to Capital Mortgage, “there is no basis for liability of Shore Capital,” it said.

Telephone Consumer Protection Act plaintiff Mark Bruder and defendants Charter Communication and Spectrum “settled all matters in controversy in principle and are in the process of finalizing their settlement of this matter,” said Bruder’s settlement notice Monday (docket 4:23-cv-01075) in U.S. District Court for Eastern Missouri in St. Louis. The parties expect to file a stipulation of dismissal with prejudice within the next 60 days as part of that settlement, said the notice. They request a stay of 60 days to allow them time to finalize the settlement agreement, procure necessary signatures, “and allow the parties adequate time to fulfill the terms of the settlement agreement in their entirety,” it said. Bruder asks that the court vacate all outstanding case deadlines and court dates, it said. Bruder’s Aug. 25 complaint alleged that Charter and Spectrum send automated texts to individuals throughout the U.S. who should be on their internal do not text lists, and that they do so without obtaining consumers’ prior express written consent (see 2308250040).

The U.S. District Court for Middle Pennsylvania in Williamsport should deny defendant Exact Care Pharmacy’s Jan. 29 motion for judgment on the pleadings (see 2401310029), said plaintiff Brenda Everett’s opposition brief Monday (docket 4:23-cv-01649). Everett’s Oct. 4 Telephone Consumer Protection Act class action alleges that Exact Care sends prerecorded messages to individuals’ phone numbers without first obtaining the required express written consent. Exact Care counters that the TCPA was designed to protect individuals from intrusive, unwanted calls, not calls like the one at issue in this case that an individual “requests and then attempts to manipulate into a TCPA claim.” Everett contends that Exact Care represented to her that she was completing a survey to receive more information, but in fact, Exact Care was attempting for Everett to agree to receive automated calls from Exact Care and its marketing partners, said her opposition brief. FCC regulations make clear that duping consumers into agreeing to receive telemarketing calls “was never lawful,” it said. Exact Care also completely ignores the “express written consent” standard it was required to comply with before engaging in telemarketing, it said.