Telephone Consumer Protection Act plaintiff Lee Cunningham failed to do what the court ordered him to do when it told him to submit sworn statements made under penalty of perjury to support his TCPA claims against Southern Power (see 2305030039), said the utility’s response Tuesday (docket 2:22-cv-00621) in U.S. District Court for Middle Alabama in Montgomery. The wholesale power company contends Cunningham’s complaint is “impermissibly frivolous” because he in fact knows Southern Power wasn't the party that inundated him with debt collection calls, but he’s suing the company anyway (see 2304280041). Cunningham’s two recent filings “are remarkable for what they don’t say,” said Southern Power. Never once does he state, in any form, “a factual basis for proceeding” against Southern Power, it said: “That omission is glaring and determinative.” Southern Power “takes no position” on whether Cunningham has “meritorious claims against the proper defendant,” which is Alabama Power, Cunningham's electric utility, said the company. “He may, but when asserted against Southern Power, those claims are frivolous and have no factual or legal support,” it said.

Plaintiff Renate Moore’s class action against Space Coast Credit Union for allegedly “routinely violating” the Telephone Consumer Protection Act is scheduled for a jury trial in the two-week trial period beginning Jan. 29, said a paperless order Tuesday (docket 0:23-cv-60659) from U.S. District Judge Michael Moore for Southern Florida in Fort Lauderdale. Plaintiff Moore alleges Space Coast left her at least 15 prerecorded voicemails in the past year, all intended for a person named Marie who she doesn’t know (see 2304070001).

Telephone Consumer Protection Act defendant Healthhubb failed to appear at Tuesday’s status hearing and didn’t contact the court, said a minute entry (docket 1:23-cv-00979) from U.S. District Judge Sharon Johnson Coleman for Northern Illinois in Chicago. Counsel for plaintiff Antionette Woodard stated on the record at the hearing that Healthhubb was properly served on March 15 with no response, so counsel intends to file a motion for default. The judge scheduled the next in-person status hearing for Aug. 25. Woodard alleges Humana is vicariously liable for the incessant insurance solicitation calls that third-party telemarketing vendor Healthhubb made on Humana's behalf to her cellphone number that was listed on the national do not call registry for months (see 2305020043). Humana asserts it has no business relationship with Healthhubb and never did.

Wesley Todd voluntarily dismissed with prejudice his Telephone Consumer Protection Act claims against T-Mobile, said his notice Monday (docket 2:23-cv-14024) in U.S. District Court for Southern Florida in Fort Pierce. Todd alleged T-Mobile sent him “repeated text messages” to a cellphone number listed on the national do not call registry since May 2022 (see 2302010044).

American Express doesn’t waive its right to compel plaintiff Debra Duke’s Telephone Consumer Protection Act claims to arbitration, said its answer to Duke’s class action Friday (docket 4:23-cv-00125) in U.S. District Court for Arizona in Tucson. Duke alleges American Express hounded her with debt collection calls intended for another person (see 2303130055). The fines and penalties Duke seeks under the TCPA violate the Eighth Amendment's excessive fines clause and the Fifth Amendment's takings clause, it said. Imposing liability or statutory damages under the TCPA also would violate the due process clause, it said. American Express alleges Duke’s claims for relief “are barred to the extent the alleged conduct complied with the provisions of the applicable FCC regulations,” it said.

U.S. District Judge Brett Ludwig for Eastern Wisconsin in Milwaukee signed an order Thursday (docket 2:22-cv-01464) largely denying the motion of defendant A Marketing Resource (AMR) to strike plaintiff Jean Zoulek’s Telephone Consumer Protection Act class allegations. Zoulek alleges AMR, a telemarketing vendor, hounded her with 17 phone calls between August and December to a number listed on the national do not call registry, trying to get her to resubscribe to the Milwaukee Journal Sentinel. Zoulek’s class allegations aren’t “facially defective,” said Ludwig, agreeing to strike only those allegations related to a potential Rule 23(b)(2) class. Zoulek can’t certify classes under Rule 23(b)(2) because the rule addresses only injunctive or declaratory relief, said his order. That doesn’t make it “anathema to any case where the class seeks money damages,” it said: “The question is whether the injunction is more headliner or opening act.” Zoulek’s complaint seeks both equitable and monetary relief, it said. But the monetary relief she seeks “is obviously not auxiliary to the injunction she also requests,” it said. It’s the lawsuit’s “principal aim,” it said: “On its face, then, the complaint is incapable of identifying a class that would be properly certified under Rule 23(b)(2).”

Pro se plaintiff Na’eem Betz answered a May 9 order from Chief U.S. District Judge James Boasberg for the District of Columbia for a sworn statement about his financial condition (see 2305100051) with an affidavit Tuesday (docket 1:23-cv-01177) threatening a disciplinary complaint against the judge for bias. U.S. District Judge Tanya Chutkan granted Betz leave to proceed with his Telephone Consumer Protection Act complaint against Comcast Cable in forma pauperis (in the manner of a pauper) before the case was reassigned to Boasberg, said the affidavit. Betz has “deep reservations regarding the true nature” of Boasberg’s “further review of a matter already adjudicated on before he was assigned to this case,” it said. Betz sees Boasberg’s further review as “a blatant disregard” of local court rules “and is considering filing a formal complaint,” it said. In the affidavit, Betz declared under penalty of perjury that “because of my poverty I am unable to prepay the costs” of the case against Comcast. In the past 12 months, “I have not settled any cases in this court and received any money,” said the affidavit. Betz also hasn’t received any income in the past year, it said.

Robocall defendant Michael Smith and his company, Health Advisors of America, in their May 8 motion in limine “seek to preserve the argument” that the U.S. District Court for Southern Texas in Houston lacks subject-matter jurisdiction over Telephone Consumer Protection Act claims that occurred before July 6, 2020, said DOJ’s response Tuesday (docket 4:20-cv-02021). That’s the date of the U.S. Supreme Court’s opinion in Barr v. American Association of Political Consultants saying the government-debt exception on the TCPA’s cellphone restriction was unconstitutional but severable from the rest of the statute. The defendants’ new assertion “merely rehashes the argument already rejected” by the district court when it denied their motion to dismiss, said DOJ. The defendants “have thus already preserved this argument for appeal,” and so the court should bar them from “re-presenting this argument at trial,” it said.

Plaintiff Jennifer Holt doesn’t oppose Amazon’s motion to transfer her Telephone Consumer Protection Act class action to the Western District of Washington in Seattle where Amazon's primary headquarters is, said Holt’s notice Tuesday (docket 6:23-cv-00104) in U.S. District Court for Eastern Oklahoma in Muskogee. Amazon alleges Holt agreed to Amazon’s conditions of use, including the Seattle “venue provision” to adjudicate disputes between the parties (see 2305040047). Holt’s March 23 complaint alleges Amazon engages in text-messaging “spam,” and its texts continue even after consumers opt out of the solicitations.

U.S. District Judge Julien Neals for New Jersey in Newark signed an opinion Monday (docket 2:21-cv-10814) denying the motion of credit repair services company Credit Pros to dismiss plaintiff Joshua Champion’s Telephone Consumer Protection Act complaint. Champion alleges Credit Pros sent 56 text message solicitations between October 2020 and January 2021 to a number he had listed on the national do not call registry since July 2019. There are “sufficient factual allegations” to show Credit Pros violated the TCPA by contacting a number on the DNC registry and by failing to identify the sender of the text messages, said Neals’ opinion. There also are sufficient allegations to show Credit Pros used an automatic telephone dialing system in sending Champion the texts, also in violation of the TCPA, it said. The judge said Champion stated a claim for treble damages because the TCPA violations were knowing and willful, it said. The 56 text messages came from 56 different phone numbers because Credit Pros sought to avoid getting blocked, said the opinion. The alleged text messages included misspelled words, which further indicates Credit Pros “sought to appear legitimate,” it said. The company went to great lengths to hide its identity in the text messages to avoid liability under the TCPA, it said: “Plainly, these factual allegations suggest awareness of wrongdoing.”