The 3rd U.S. Circuit Court of Appeals tentatively calendared oral argument for the week of April 8 in plaintiff-appellant Andrew Perrong’s appeal to reverse the district court’s July 18 dismissal of his Telephone Consumer Protection Act case against the Democratic Committee of Montgomery County, Pennsylvania, the court said in a letter Tuesday (docket 23-2415) to Perrong’s counsel. The district court found no binding precedent in the 3rd Circuit or U.S. Supreme Court that squarely addressed whether randomly or sequentially calling all numbers on a previously compiled list constituted an automatic telephone dialing system that violates the TCPA, as Perrong alleges (see 2308090033). Relying on the TCPA’s statutory language, the district court said a device that randomly or sequentially calls all phone numbers in a previously compiled list wouldn’t qualify as an ATDS as long as the numbers weren’t randomly or sequentially generated.

SelectQuote markets Medicare supplemental insurance services through the use of prerecorded telemarketing calls, in violation of the Telephone Consumer Protection Act, alleged Jay Stannard in a class action Monday (docket 6:24-cv-00312) in U.S. District Court for Middle Florida in Orlando. The Brevard County, Florida, resident also alleges that SelectQuote and its telemarketers use automated systems to make telemarketing calls into Florida, and that by doing so, SelectQuote also has violated the Florida Telephone Solicitation Act, said his complaint. At no point did Stannard consent to receive telemarketing calls regarding SelectQuote’s goods or services before receiving the prerecorded calls at issue, it said. Court records show that Stannard’s complaint is the 19th TCPA action brought against SelectQuote nationally since August 2019.

Circle K Stores repeatedly sent telemarketing text messages to Emisiah Hughes and her putative class members even after they “expressly requested” that the convenience store chain stop sending them, alleged Hughes’ Telephone Consumer Protection Act class action Friday (docket 1:24-cv-01071) in U.S. District Court for Central Illinois in Peoria. Despite confirming it would no longer send the Peoria resident its telemarketing text messages after she replied “stop” to one of those messages, Circle K continued sending her multiple messages, alleged her complaint. The retailer’s conduct “violated the privacy rights of Hughes and the putative class members, as they were subjected to annoying and harassing text messages,” it said. Circle K’s texts, promoting everything from new lottery games to free offers on Mountain Dew soft drinks, “intruded upon the rights of Hughes and the putative class members to be free from invasion of their interest in seclusion,” it said. Circle K has texted and continues to text people who have requested that the retailer place them on its internal do not call list, said the complaint: “It is reasonable to expect that Circle K will continue to send such text messages absent this lawsuit.”

LiveFree Emergency Response, which sells mobile medical alert systems, placed telemarketing calls to Garrett Traylor and his putative class members using a prerecorded voice, despite not having received prior express written consent to place those calls, alleged Traylor’s Telephone Consumer Protection Act class action Friday (docket 1:24-cv-10329) in U.S. District Court for Massachusetts in Boston. Traylor listed his landline phone number on the national do not call registry in August 2003, yet he received multiple calls pitching him on LiveFree’s Life Beacon device and $39.99 monthly monitoring services, said his complaint. On all the calls, LiveFree spoofed its phone number to make the incoming call appear as though it originated from the plaintiff’s same 617 area code “so that Traylor would be more likely to answer the phone,” it said. Not only did LiveFree “incessantly place telemarketing calls to Traylor,” it did so after he repeatedly asked the company in writing to stop calling him, it said. The calls that LiveFree placed to the Westwood, Massachusetts, resident and his putative class members were “harassing, irritating, invasive and annoying,” said his complaint. “Where LiveFree is the only party that disclosed its identity” in calls that Traylor answered, he alleges the company is “directly liable” for those unlawful calls, it said. But if discovery reveals that some or all of the calls were made by third parties on LiveFree’s behalf, then it's vicariously liable for those calls, the complaint said. LiveFree isn’t permitted under the law “to outsource and contract its way out of liability by directing and benefitting from its agents’ TCPA violations," it said.

Rocket Mortgage filed concurrent motions Friday in U.S. District Court for Arizona in Phoenix to dismiss plaintiff Darren MacDonald’s Dec. 11 Telephone Consumer Protection Act class action and to compel his claims to arbitration. MacDonald alleges that Rocket places unsolicited calls and sends unsolicited text messages to consumers without their consent, including to numbers listed on the national do not call registry (see 2312120001). He further alleges that Rocket employees have listed cold calling as a core part of their job descriptions in their Linkedin profiles. But MacDonald’s lawsuit “fails at its inception for want of the requisite factual allegations to sustain it,” said the company’s motion to dismiss (docket 2:23-cv-02558). To state his TCPA claims, MacDonald must plead factual allegations that he received two or more telephone solicitation calls from Rocket within the same 12-month period, which “he has failed to do,” it said. The complaint at best offers “only conclusory allegations” that he received one solicitation call from Rocket in June 2022. Recognizing this isn’t enough, MacDonald also pleads that the company sent him a text message the same day with a Rocket employee’s name and phone number, it said. But the text message doesn’t and can’t qualify as a second solicitation call as a matter of law “because it contains no solicitation of any kind,” it said. Rocket’s motion to compel said the plaintiff agreed to arbitrate, not litigate, any claims for violation of the TCPA against Rocket on an individual, not class basis. In “direct breach of that agreement,” MacDonald filed his putative class action lawsuit against the company asserting claims for violation of the TCPA, it said. The court should enforce MacDonald’s agreement and compel his TCPA individual claims to arbitration, it said. The facts relevant to Rocket’s motion to compel “are straightforward,” it said. MacDonald in June 2022 completed an online submission at Rocket’s website to request information, by calls or text messages, about Rocket’s mortgage products, it said. The online submission contained Rocket’s complete terms of use, including the TCPA-related arbitration provision, readily available to MacDonald for review, it said. It “expressly informed” him that by clicking a submission button, he was agreeing to the TCPA-related arbitration and other provisions in the terms of use, it said.

U.S. District Judge Stephen Clark for Eastern Missouri in St. Louis granted Vintage Stock’s motion to dismiss Count II of the first amended Telephone Consumer Protection Act complaint filed by Sheila and Dennis Thompson, alleging that the home entertainment retailer failed to institute procedures for maintaining a list of persons who request not to be called (see 2303300027), said the judge’s signed memorandum and order Thursday (docket 4:23-cv-00042). Clark found that the Thompsons didn’t sufficiently plead factual allegations to demonstrate that the injury they incurred by receiving unwanted text messages is “fairly traceable” to Vintage Stock’s allegedly unlawful conduct of failing to meet the requirements of the TCPA’s Section 64.1200(d). He also found that the Thompsons’ complaint “contains no facts connecting Vintage Stock’s alleged failures with their receiving of text messages. The Thompsons “don’t allege in their complaint that they asked Vintage Stock to place them on its internal do-not-call list, or even that they asked Vintage Stock not to contact them,” said the memorandum and order. This means that even if Vintage Stock had done everything the Thompsons complain it failed to do -- instituted procedures for maintaining the list, had a written policy for maintaining it and properly trained its employees -- the Thompsons “would be in the exact same position,” it said. They would have received the unwanted text messages from Vintage Stock because they wouldn’t have been on Vintage Stock’s internal do-not-call list, said the memorandum and order. “In other words, even if Vintage Stock fully complied with Section 64.1200(d)’s requirements, the Thompsons would have suffered the exact same harm,” it said: “As pleaded, the Thompsons’ injury is simply not traceable to any of Vintage Stock’s allegedly unlawful conduct.” The judge also granted in part Vintage Stock’s motion to strike the Thompsons’ class allegations.

Albertsons, “by means contrary” to the Telephone Consumer Protection Act, has contacted Anthony Kamel’s cellphone number multiple times using an autodialer even after Kamel told the supermarket chain to stop contacting him, alleged Kamel’s class action Thursday (docket 8:24-cv-00270) in U.S. District Court for Central California in Santa Ana. Albertsons, “during the time frame relevant” to Kamel’s complaint, “has sent out thousands of unlawful and unwanted text messages,” trying to sell its goods and services in violation of the TCPA, said the complaint. By “effectuating” these unauthorized text message calls, Albertson’s has caused consumers "actual harm," it said. They were subjected to the aggravation “that necessarily accompanies mobile spam,” but also because consumers frequently have to pay their cellphone service providers for the receipt of such spam, it said. Those spam messages diminish cellphone battery life, waste data storage capacity and are an intrusion upon seclusion, it said. Albertsons obtained Kamel’s phone number when he was paying for goods at an Albertsons store, and a cashier asked the California resident for his number to see if he was a rewards member, said the complaint. Kamel didn’t sign any documents or contracts, nor review any prompt screens or other disclosures on the Albertsons point-of-sale system, it said. He also wasn’t asked to verbally confirm agreement to any terms or conditions, or to otherwise consent to be contacted on his cellphone, nor did Kamel “verbally or otherwise offer any such confirmation or consent,” it said. Kamel estimates Albertsons sent him a total of seven telemarketing text messages after receiving his initial opt-out request Dec. 5, said the complaint. The company’s failure to honor opt-out requests demonstrates that it doesn’t maintain written policies and procedures regarding its text messaging marketing, not does it provide training to its telemarketing employees or maintain a standalone do-not-call list, it said. Albertson's conduct constitutes “abusive telemarketing,” the complaint said.

U.S. District Judge Brantley Starr for Northern Texas in Dallas denied Tiffany Harris' Feb. 5 motion to proceed with her Telephone Consumer Protection Act class action without the requirement of local counsel, said a text-only docket entry Thursday (docket 3:23-cv-02884). Starr ordered Harris to appoint local counsel under Local Rule 83.10 by March 7. Harris’ Dec. 29 complaint alleges that American HomeSecures, in an “overzealous attempt” to market its smart home security services, willfully or knowingly made, and continues to make, unsolicited telemarketing phone calls to residential phones using an artificial or prerecorded message without the prior express written consent of the calls’ recipients, and to numbers listed on the national do not call registry (see 2401010002). The plaintiff’s motion said her current counsel of record, Amy Ginsburg of the Kazerouni Law Group in Costa Mesa, California, who is admitted to practice in Texas, “has extensive experience handling TCPA matters” and has handled “countless cases” before the federal courts. Her rationale for seeking leave to proceed without local counsel was “to keep fees and costs low, and aid settlement of this matter,” said her motion.

Stuart Nissenbaum brought suit against Restoration Holdings to stop it from sending him automated telemarketing text messages promoting the sale of its hair restoration services in violation of the Telephone Consumer Protection Act, said his class action Wednesday (docket 1:24-cv-01075) in U.S. District Court for Northern Illinois in Chicago. Restoration’s automated equipment continued to send these messages even after the Denver resident “repeatedly instructed” it to stop, said his complaint. He alleges receiving multiple text-message solicitations from Restoration between Oct. 4 and Jan. 30, and that the company “failed to institute the procedures necessary to honor do-not-call requests,” it said. “It is industry standard for automated text message systems to honor stop requests immediately and to send an acknowledgment of the stop request,” it said. But Restoration “failed to meet these standards,” it said. Its actions harmed Nissenbaum “by intruding upon his seclusion, interfering with the legitimate use of his phone, wasting his time, and invading his privacy,” it said.

Plaintiff Racheal Paul and defendant Margaritaville Enterprises stipulate to the dismissal of Paul’s class action with prejudice of her individual claims and without prejudice “as to any other member of the putative class’s right to bring claims,” said their stipulation of dismissal Wednesday (docket 6:23-cv-00223) in U.S. District Court for Middle Florida in Orlando. Each party will bear its own attorneys’ fees and costs, it said. Paul alleged Margaritaville unlawfully sends telemarketing text messages without consent to consumers who listed their numbers on the national do not call registry and to those who specifically asked the company to stop texting them (see 2303210003). Paul listed her cellphone number on the DNC registry in April 2014, yet she alleges receiving at least two text solicitations offering her a free appetizer if she visited a Margaritaville restaurant.