Anthony Kamel hasn’t provided “sufficient factual evidence” to support the assertion that his cellphone number is used for residential purposes, said Albertsons’ memorandum of points and authorities Thursday (docket 8:24-cv-00270) in U.S. District Court for Central California in Santa Ana in support of its motion to dismiss the plaintiff’s Feb. 8 Telephone Consumer Protection Act class action for failure to state a claim. Kamel alleges that Albertsons, “by means contrary” to the TCPA, contacted his cellphone number multiple times with telemarketing text messages using an automatic telephone dialing system (ATDS) even after he told the supermarket chain to stop contacting him (see 2402090007). But the defendant argues that Kamel’s complaint relies on “conclusory allegations” that his cellphone number is residential, that he’s the cellphone’s account holder and that he’s the regular user of the number, said its memorandum. “Such threadbare allegations lack the necessary factual underpinning to demonstrate the number’s residential use” and defeat Kamel’s residential phone number claim under the TCPA, it said. The plaintiff’s claim is “further undermined” by publicly available information, said the memorandum. The subject number is listed on a publicly accessible website and social media platform as the contact number for Kamel’s jewelry business, “indicating its use for business purposes and inviting public inquiries related to jewelry -- a blatant contradiction that the number is residential,” it said. Kamel’s Telemarketing Sales Rule claim likewise fails because he doesn’t allege he suffered the “requisite amount of damages to state a private right of action,” said the memorandum. The Telemarketing and Consumer Fraud and Abuse Prevention Act, the statute under which the TSR was promulgated, requires that a plaintiff plead at least $50,000 in actual damages to be entitled to a private right of action for violations of the TSR, it said. Kamel’s allegations also “belie an essential element of the claims” that he was contacted using an ATDS as defined under the TCPA, said the memorandum. Under binding 9th Circuit authority, to qualify as an ATDS, equipment “must randomly or sequentially generate telephone numbers to be dialed,” it said. Equipment that "merely dials numbers" obtained in a non-random, non-sequential way, such as when a plaintiff provides his number to a defendant, is not an ATDS, it said. Kamel admits that he received text messages from Albertsons only after he provided his number to an Albertsons cashier, “thus establishing that Albertsons did not contact him using an ATDS,” it said. Even if the court doesn’t dismiss Kamel’s complaint in its entirety, it should dismiss his requests for declaratory and injunctive relief, because he doesn’t allege “any continuing TCPA violations or the threat of future harm or otherwise allege that money damages are an inadequate remedy at law,” it said.

Michael Maffia seeks to stop Fuego Leads and its subsidiary, Health Insurance Alliance, from violating the Telephone Consumer Protection Act by making telemarketing calls to consumers without consent, including calls to phone numbers listed on the national do not call registry, and to consumers who have expressly requested that the calls stop, said Maffia’s class action Thursday (docket 0:24-cv-60632) in U.S. District Court for Southern Florida in Fort Lauderdale. Fuego Leads owns and operates a network of websites that it uses to generate leads for its call center, said the complaint. The company also owns and operates Health Insurance Alliance, which sells medical and dental health plans through licensed agents. “For all intents and purposes, the companies are intimately intertwined,” said the complaint, sharing the same executives, located at the same address in Fort Lauderdale and often listed together on job postings. In job postings for Health Insurance Alliance, Fuego Leads “specifically lists cold calling as a job requirement,” it said. The defendants “lack a sufficient internal do not call system,” causing consumers like plaintiff Maffia “to receive unsolicited telemarketing calls despite having requested that the calls stop,” it said. The Jacksonville, Florida, resident listed his cellphone number on the national DNC registry Dec. 14, yet he received "daily calls" from the defendants throughout February, it said. With each call, Maffia asked for his phone number to be removed from the contact list, but in most cases, the callers “would simply hang up in response,” said the complaint. The unauthorized solicitation calls that Maffia received have harmed him “in the form of annoyance, nuisance, and invasion of privacy,” it said. The calls have occupied his phone line and disturbed the use and enjoyment of his phone, it said. The calls have also caused him “significant mental distress,” it said. He can’t block the calls because the defendants almost always call “using a different phone number, and his stop requests have been disregarded,” it said.

CenturyLink and the third-party vendors it hires to place outbound calls to consumers on its behalf hounded plaintiff Jeffrey Taylor with “incessant” debt collection calls, even after he completely paid off his CenturyLink internet and voice account and showed a zero balance, alleged Taylor’s complaint Friday (docket 5:24-cv-00195) in U.S. District Court for Middle Florida in Ocala. His complaint alleges violations of the Telephone Consumer Protection Act and the Florida Consumer Collection Practices Act. Despite Taylor notifying CenturyLink that its collection calls were unwelcome, and being placed to collect a debt that no longer existed, CenturyLink continued to place “excessive” calls to Taylor’s phone using a prerecorded message, said the complaint. CenturyLink’s “harassing” phone calls have severely disrupted Taylor’s “daily life and general well-being,” it said. Its “phone harassment campaign and illegal collection activities” have caused Taylor "actual harm," including invasion of privacy, nuisance, intrusion upon and occupation of his phone capacity, it said.

Great Lakes Home Remodeling engages in “offensive marketing practices” that violate the Telephone Consumer Protection Act when it makes telemarketing calls soliciting its roofing products and services, alleged Adam Besso’s class action Wednesday (docket 3:24-cv-00688) in U.S. District Court for Western Ohio in Toledo. Great Lakes calls individuals whose numbers are listed on the national do not call registry, and those who have requested not to be called and to be added to the company’s internal do not call list, said Besso’s complaint. The Pontiac, Michigan, plaintiff listed his cellphone number on the national DNC registry in April 2017, yet he began receiving marketing calls Dec. 18 from Great Lakes or representatives on its behalf. Solicitations were for roofing products and services, the complaint said. During these calls, Besso would inform Great Lakes that he wasn’t interested, it said. Besso estimates that Great Lakes phoned him at least nine times between Dec. 18 and March 21, said the complaint. After the March 21 call, he phoned Great Lakes at the number displayed on his caller ID and demanded that the company stop calling him, it said. But Great Lakes failed to honor Besso’s March 21 request, and even phoned him multiple times that day, it said. The plaintiff repeated his do not call demand March 26, yet at least 11 more calls followed between March 27 and Wednesday, the day he filed his class action, said the complaint. Great Lakes’ TCPA violations were negligent, or they were knowing and willful, it said. Besso and his potential class members were “damaged” by the violations because their privacy was “improperly invaded,” it said. Great Lakes’ calls also “temporarily seized and trespassed upon the use of their phones, and they were forced to divert attention away from other activities to address the unwanted calls,” it said. The complaint alleges that the defendant uses automated systems to make phone calls to hundreds, if not thousands of consumers across the U.S.

State Farm incorrectly contends that Gabriel Nater fails to state a claim under the Telephone Consumer Protection Act, said the plaintiff’s opposition Wednesday (docket 1:23-cv-01408) in U.S. District Court for Central Illinois in Peoria to State Farm’s motion to dismiss his first amended complaint. Nater’s complaint “adequately states a claim for relief” because at the pleading stage of a TCPA case, the plaintiff “need only allege facts supporting a reasonable inference” that State Farm is responsible for the illegal calls that he received on his cellphone, said his opposition. The defendant nevertheless asks the court “to turn a blind eye” to the complaint’s “detailed allegations that recite the clear legal basis for holding State Farm liable for the unauthorized telemarketing calls” made to Nater and the putative class, it said. The company “simply ignores” the FCC’s order establishing that a seller such as State Farm may be vicariously liable under federal common law agency-related principles for violations of either Section 227(b) or 227(c) committed by telemarketers that initiate calls to market its products or services, said Nater’s opposition. State Farm’s motion to dismiss “should be denied in its entirety” because Nater “has met his burden to show subject-matter jurisdiction, it said. The complaint’s allegations show that even if it turns out that State Farm didn’t itself place the calls to Nater, it “can still be held vicariously liable,” said the opposition. If the court isn't inclined to deny State Farm’s motion “outright,” Nater “requests jurisdictional discovery to explore State Farm’s relationship with its agent as well as the unidentified entity it claims made the calls at issue,” it said. Should the court be inclined to grant State Farm’s motion to dismiss, in whole or in part, Nater requests leave to amend “to cure any perceived deficiencies,” it said.

Straight Marketing, a New Jersey company that markets and sells internet search engine optimization services, made unsolicited prerecorded telemarketing calls to Andrew Colon and others without their prior express consent, alleged Colon’s Telephone Consumer Protection Act class action Monday (docket 3:24-cv-00388) in U.S. District Court for Western North Carolina in Charlotte. The North Carolina resident and all members of the class have been harmed by the defendant’s acts “because their privacy has been violated and they were annoyed and harassed,” said the complaint. The calls also occupied the class members' phone lines, “rendering them unavailable for legitimate communication, including while driving, working, and performing other critical tasks,” it said.

T-Mobile is waging a telemarketing campaign in which it sends text messages marketing its services to numbers on the national do not call registry, in “plain violation” of the Telephone Consumer Protection Act, alleged Rudy Sepulveda’s class action Tuesday in U.S. District Court for Western Washington in Seattle. The Torrance, California, resident opted out of text messages from T-Mobile on Jan. 24 by replying “stop” to one of its text message solicitations, said the complaint. Yet the carrier and its agents, in direct violation of the TCPA, “contacted and continue to contact individuals,” including Sepulveda, “who have requested that contact cease,” it said. The defendant received at least 10 T-Mobile text solicitations between Feb. 1 and April 9, after he requested that T-Mobile no longer contact him with those messages, it said. T-Mobile, or someone acting on its behalf, violated Sepulveda’s privacy by sending those unwanted telemarketing text messages, “and they constitute a nuisance as they are annoying and harassing,” it said.

Quierra Robey and her class members received unwanted spam telemarketing text messages from convenience store company Rebel Stores “without regard” to the Telephone Consumer Protection Act, the Florida Telephone Solicitation Act or for "individual privacy,” alleged Robey’s class action Monday (docket 5:24-cv-00787) in U.S. District Court for Central California in Riverside. The Hillsborough County, Florida, resident's lawsuit challenges all telemarketing text messages that were sent by Rebel Stores or on its behalf from around March 2020 through the date of preliminary approval of class certification, it said. The FTSA’s caller ID rules require that parties making telephonic sales calls transmit to the consumer’s caller ID service a phone number that’s capable of receiving phone calls in return, said the complaint. Unlike claims for damages for text message solicitations that the called party doesn’t consent to receive, claims for violations of the caller ID rules are “equally applicable” to all phone sales calls, text messages or voicemails, “regardless of whether they are solicited or consented to” or they are “traditional, automated, or recorded,” it said. Rebel Stores transmitted at least four numbers to Robey’s caller ID service, but her counsel was unable to connect with the company when dialing those numbers, said the complaint. The plaintiff never provided Rebel Stores with her prior express written consent or any other party acting on its behalf to authorize the subject telemarketing text messages, it said. In an attempt to opt out of any further telemarketing text communications with Rebel Stores, Robey on various occasions texted the company the word “stop,” but it ignored her requests and continued to text promotional telemarketing messages despite her clear revocation of any alleged prior consent, it said. The defendant’s failure to honor opt-out instructions is “indicative” of its failure to maintain written policies and procedures regarding its text messaging marketing, provide proper training to its telemarketing personnel and maintain an internal do not call list, it said. To the extent that Rebel Stores outsourced its telemarketing spam text messaging campaigns, it’s nonetheless liable for texts that violate the TCPA or FTSA, said the complaint. It’s liable for third-party actions “if it took steps to cause the telemarketing texts to be made,” or if the telemarketing texts were made under its “actual authority, apparent authority and/or ratification,” it said.

The U.S. Supreme Court denied Ambassador Animal Hospital's Telephone Consumer Protection Act cert petition (see 2403210005), said a text-only docket entry Monday (docket 23-552). The Nov. 20 petition sought to reverse the 7th U.S. Circuit Court of Appeals decision affirming the district court’s dismissal of Ambassador’s TCPA complaint against Elanco, a veterinary pharmaceutical company. Elanco allegedly sent Ambassador two faxes inviting its veterinarians to an informational dinner seminar, but the lower courts held that the faxes didn’t constitute unlawful unsolicited ads under the TCPA because they didn’t explicitly solicit purchases for the company products. The plaintiff alleged that the fax invitations were a pretext for marketing Elanco’s veterinary drugs and thus were unsolicited ads under the TCPA.

The parties have reached a tentative resolution of Christopher Bombardiere’s Telephone Consumer Protection Act claims against Brooklyn car dealership Plaza Auto Mall, said Bombardiere's notice Monday (docket 1:23-cv-08609) in U.S. District Court for Eastern New York in Brooklyn. The parties anticipate a notice of voluntary dismissal of the plaintiff’s individual claims against Plaza will be filed in the next 60 days, said the notice. They ask that the court, in the meantime, vacate any and all pending case deadlines and stay the case, and that the court retain jurisdiction and not dismiss the matter at this time, it said. Bombardiere alleged that Plaza sent “dozens” of text message advertising deals to his cellphone, despite his number having been listed on the national do not call registry since January 2015 (see 2311210047).