A 9th U.S. Circuit Appeals Court panel reversed the district court’s dismissal of an action under the Telephone Consumer Protection Act for lack of Article III standing and remanded for further proceedings. Plaintiff Kristen Hall alleged defendants Smosh Dot Com and Mythical Entertainment sent five text messages to a cellphone number that she had placed on the national do not call registry and gave to her 13-year-old son. The U.S. District Court for Eastern California decided Hall lacked Article III standing because she failed to allege she was the phone's user or recipient of the text messages. “We now hold that the owner and subscriber of a phone” with a number listed on the DNC registry “has suffered an injury in fact when unsolicited telemarketing calls or texts are sent to the number in putative violation of the TCPA,” said the Friday opinion (docket 22-16216). “The owner and subscriber of the phone suffers a concrete, de facto injury when their right to be free from such communications is violated,” it said. That holds “even if the communications are intended for or solicited by another individual, and even if someone else is using the phone at the time the messages are transmitted,” it said. Since Hall alleges she was the owner and subscriber of a cellphone number on the DNC registry that received unsolicited text messages in violation of the TCPA, “she has stated an injury in fact sufficient to satisfy Article III,” it said.

Plaintiff Matthew Dickson and defendant Direct Energy should confer and file a joint notice by July 12 detailing how they believe Dickson’s Telephone Consumer Protection Act complaint should proceed after remand, said a signed order Friday (docket 5:18-cv-00182) by U.S. District Judge John Adams for Eastern Ohio in Akron. The joint notice should include a proposed discovery schedule “that details the scope of any discovery and a deadline for any motion practice,” said the order. The 6th U.S. Circuit Court of Appeals reversed Adams’ dismissal of Dickson’s TCPA claims for lack of standing because he failed to demonstrate an injury (see 2306020041). The 6th Circuit remanded the case to the district court for further proceedings, but declined Dickson’s request for reassignment to a different judge on remand because he felt Adams wouldn’t give him a fair hearing. Dickson brought his TCPA action against Direct Energy, alleging the utility sent him multiple ringless voicemails that promoted its services.

Plaintiff Olukemi Adewole voluntarily dismissed her Telephone Consumer Protection Act claims against Procter & Gamble, said her notice Thursday (docket 1:23-cv-00336) in U.S. District Court for Southern Ohio in Cincinnati. P&G hadn’t served an answer, a motion for summary judgment or any other responsive pleading to Adewole’s June 1 complaint, said the notice. The dismissal applies only to Adewole’s claims, and doesn’t affect claims by other putative class members, it said. Adewole’s class action alleged P&G engages “in unsolicited and continuous text messaging practices” in support of its Oral-B brand, even after consumers opt out of the solicitations (see 2306020004).

U.S. District Judge Larry Burns for Southern California in San Diego gave plaintiff Rogerio Castillo and defendant Citibank a July 7 deadline to show cause why Castillo’s Telephone Consumer Protection Act claims shouldn’t be dismissed in their entirety without prejudice, said his signed order Wednesday (docket 3:23-cv-01007). Castillo and Citibank jointly agreed to submit the TCPA claims to “binding individual arbitration,” they told the judge in a June 20 motion (see 2306210038). “But given that the parties are subject to mandatory arbitration, it appears the Court may lack jurisdiction over this action,” said Burns’ order. Castillo alleges Citibank phoned him more than 140 times to collect a debt on three credit card accounts after his lawyer sent a cease and desist letter urging the bank to stop (see 2306010054).

USAA Federal Savings Bank inundated the cellphone of plaintiff Matthew Fairchild with debt collection calls using an automated telephone dialing system and artificial or prerecorded voice in violation of the Telephone Consumer Protection Act, alleged Fairchild’s complaint (docket 3:23-cv-01173) Monday in U.S. District Court for Southern California in San Diego. USAA phoned the San Diego County resident at least 150 times, often two or three times a day, seven days a week, even after his lawyer sent the bank a cease and desist letter demanding that the calls stop, said the complaint, which also alleges violations of California’s Rosenthal Fair Debt Collection Practices Act. Court records show Fairchild’s complaint was the 64th TCPA action filed against USAA since December 2014.

DoorDash repeatedly flooded the personal cellphone of married couple LaVonne and Wesley Rodgers with telemarketing calls using an autodialer or an artificial or prerecorded voice, alleged their Telephone Consumer Protection Act complaint Monday (docket 3:23-cv-05564) in U.S. District Court for Western Washington in Tacoma. The Longview, Washington, residents weren’t DoorDash customers before they began receiving the calls, nor did they give the company prior express consent to receive any calls, said the complaint. They asked DoorDash “multiple times” to put their number on its internal do not call list and to cease all calls to that number, which DoorDash “failed to do,” it said. Doordash previously was sued for TCPA wrongdoing, so it’s “aware of the TCPA’s prohibitions against the use of automatic dialing systems and artificial or prerecorded voices to make calls to cellular phones without the prior express consent of the called party,” it said. Court records show the Rodgers’ complaint is the ninth action filed against DoorDash for TCPA violations since March 2017.

Plaintiff Richard Alexander seeks an order voluntarily dismissing without prejudice his Telephone Consumer Protection Act claims against Dynasty Marketing Group, said his notice Friday (docket 2:22-cv-00254) in U.S. District Court for Northern Georgia in Gainesville. Alexander’s Dec. 29 complaint alleged Dynasty inundated his phone with vacation telemarketing calls, though his number was listed on the national do not call registry “for years” (see 2212300004).

Defendant Vio Franchise Group, which operates a chain of “med-spas,” promotes its products and services with unsolicited telemarketing texts, “harming thousands of consumers in the process,” alleged Brandon Weitz’s Telephone Consumer Protection Act class action Thursday (docket 1:23-cv-01231) in U.S. District Court for Eastern Ohio in Cleveland. Miami-Dade County, Florida, resident Weitz began receiving Vio’s telemarketing text messages April 2 on his cellphone without opt-out instructions, said his complaint. When he responded by manually texting a message asking not to be contacted again, Vio replied “within seconds” with “an automated opt-out confirmation text,” it said. The text messages nevertheless continued, it said. Vio’s unsolicited text messages caused Weitz “actual harm, including invasion of his privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” it said. The texts also “inconvenienced” him “and caused disruption to his daily life,” it said. Weitz seeks actual and statutory damages for himself and each member of his proposed class, plus an order declaring Vio’s actions violate the TCPA. He also seeks an injunction requiring Vio “to cease all unsolicited text messaging activity," and is demanding a jury trial, said his complaint. Vio, headquartered in Cuyahoga County, Ohio, didn’t comment Friday.

Plaintiff Christopher Atanasoff voluntarily dismisses with prejudice all his Telephone Consumer Protection Act claims against Wells Fargo Bank, said his notice Thursday (docket 3:22-cv-01698) in U.S. District Court for Southern California in San Diego. Since Atanasoff’s May 2 notice of settlement, contingent on the execution of a confidential agreement (see 2305040020), the parties have “fully resolved” the case, said the notice. Each side will bear its own attorneys’ fees and costs, it said. Atanasoff and Wells Fargo agreed in January to refer Atanasoff’s TCPA dispute to binding arbitration (see 2301100032). He alleged Wells Fargo phoned him more than 60 times to collect an old credit card debt, even after receiving a cease and desist from his lawyer.

The parties in plaintiff Paul Sapan’s class action against LendingTree for alleged Telephone Consumer Protection Act wrongdoing (see 2301170071) anticipate a jury trial on Sapan’s claims should last five to seven days, said their joint scheduling and Rule 26(f) report Thursday (docket 8:23-cv-00071) in U.S. District Court for Central California in Santa Ana. The report cautioned the court that that was the parties’ best trial-length estimate “at this early point in advance of discovery and motion practice.” Sapan alleges LendingTree or its agents transmitted 11 live telemarketing calls to his home phone to a number on the national do not call registry. Sapan believes “he will be able to prove that the calls at issue were authorized, directed or ratified” by LendingTree or that the calls were made on LendingTree’s behalf, said the report. LendingTree’s defense asserts neither it nor any entity acting on its behalf or with its express or implied consent “placed any of the calls at issue,” it said. LendingTree, like Sapan, “was the recipient of a phone call” connecting Sapan to LendingTree, it said. Sapan can’t prove “the entity that called him was acting as LendingTree’s agent,” it said. In the TCPA “context,” courts have said a company isn’t liable under the TCPA “merely because calls were made on its behalf or to its benefit,” said the report. A plaintiff must prove “traditional agency factors,” that a defendant “authorized, directed, or ratified the making of the calls at issue,” it said. Sapan “can prove no such thing against LendingTree,” it said.