Na'eem Betz’s phone number was listed on national do not call registry for at least a month before unlawful solicitations began from Comcast Cable, alleged the Washington, D.C., plaintiff's April 24 Telephone Consumer Protection Act complaint (docket 1:23-cv-01177) in U.S. District Court for the District of Columbia. Comcast kept calling Betz’s number even after it agreed to add his number to its internal do not call list, the complaint alleged. The “incessant” calls were “bothersome, disruptive and frustrating,” it said.

Redbox made “numerous” telephone sales calls to Escambia County, Florida, resident Jamie Vargas, in violation of the Florida Telephone Solicitation Act (FTSA), alleges a Monday class action (docket 3:23-cv-08760) in U.S. District Court for Northern Florida in Pensacola. The case was removed from the First Judicial Circuit Court for Escambia County. The Chicken Soup for the Soul subsidiary “engages in telephonic sales calls to consumers without having secured prior express written consent as required by the FTSA,” alleges Vargas. Redbox has placed sales calls to telephone numbers belonging to “thousands” of consumers listed in Florida without their express prior consent, it said. A screenshot from Vargas’ phone showed five texts from September-October pitching free movies, menu deals and discounts, one in exchange for her “deets.” She never authorized the sales calls or the placement of calls or text messages using an automated system for the selection and dialing of phone numbers or texts, she said. Vargas seeks a minimum award of $500 in statutory damages for each alleged text message or telephonic sales call made by, or behalf of, Redbox. The class action claims the video rental company sent over 10,000 marketing text messages to telephone companies with Florida area codes. Vargas seeks an injunction requiring Redbox to cease unauthorized sales calls, plus statutory damages.

U.S. District Judge Rodney Smith for Southern Florida in Fort Lauderdale signed an order of final dismissal without prejudice Monday (docket 0:23-cv-60453) of plaintiff Shlomy Halawani’s Telephone Consumer Protection Act and Florida Telephone Solicitation Act claims against Charter Communications. All pending motions in the case are denied as moot, said Smith’s order. Halawani’s notice of voluntary dismissal, also filed Monday, came just days after Charter filed a motion to dismiss his putative class action for lack of personal jurisdiction (see 2304190023). Halawani had alleged Charter called his phone a single time using a prerecorded voice message to market Spectrum services, in violation of the two statutes. Charter’s defense was that the “jurisdictional evidence” shows it never called him. Charter also denied it hired anyone to call Halawani on its behalf.

None of the proposed class definitions in Zachary Sawicki’s Telephone Consumer Protection Act complaint is “certifiable as defined,” said defendant loanDepot's reply Thursday (docket 2:22-cv-14425) in U.S. District Court for Southern Florida in Fort Pierce in support of its motion to strike Sawicki’s class allegations. LoanDepot proposes that each class “be stricken at the pleadings stage to assure the discovery process is smooth and loanDepot is afforded due process,” it said. Rather than address any of loanDepot’s arguments “head on,” Sawicki simply argues that Rule 12(f) is “an improper vehicle to strike class allegations,” it said. He “overlooks” that numerous courts “have properly stricken classes where, as here, the definitions are patently uncertifiable,” it said. Sawicki also is wrong that Rule 12(f) can’t be used “to strike errant requests for attorney’s fees,” said loanDepot. “This process is somewhat common in TCPA cases,” it said. Sawicki alleges loanDepot’s vendors began placing “voluminous” marketing solicitation calls in November to his cellphone, in violation of the TCPA and the Florida Telephone Solicitation Act (see 2301170005).

North Carolina car dealership John Hiester Chevrolet “sidesteps the clear regulatory text” of the Telephone Consumer Protection Act (TCPA) by asserting that a consumer clicking a “next step” button on a website is giving assent to receive prerecorded telemarketing calls, said plaintiff Tracie Beard, in her Monday reply brief (docket 22-2162) in the 4th U.S. Circuit Court of Appeals. The order on appeal marks the “first time ever” that a court has held a telemarketer can meet the requirements of a “clear and conspicuous” disclosure that is “separate and distinguishable” from other disclosures where it is contained within a hyperlinked separate webpage, said the brief. “The only evidence” the defendant presented was that Beard, by clicking the "next step" button on the car dealer's website, agreed to hyperlinked terms and conditions, plus privacy and policy notices, said the brief. It is not “clear and conspicuous,” as required under “clear, regulatory text,” which says any consent disclosure to receive prerecorded telemarketing phone calls needs to be “separate and distinguishable from “any other disclosures,” the reply said. The defense argued that plaintiff lacks standing because she didn’t read terms and conditions, so the formatting of those terms and conditions is not a TCPA Article III injury-in-fact. The formatting of the website is not what violated the TCPA, said the brief: “Placing the ringless voicemails is what violated the TCPA and confers Article III standing.” Placing consent within hyperlinked terms and conditions on a separate webpage and not disclosing that “agree” meant agreeing to telemarketing calls “cannot meet the ‘clear and conspicuous’” disclosure requirements, the reply said. Also, the purported consent language is not clearly and conspicuously disclosed within terms and conditions, which also failed to disclose that the car dealership would be placing prerecorded telemarketing voice calls that, absent consent, “would violate the law,” it said. Defendants suggest that the “realities of modern online practice” are to hide consent to receive prerecorded telemarketing calls within general terms and conditions policy located on a separate webpage from an onboarding process, said the reply. “If this were a typical practice, Plaintiff is quite confident -- and presumes the Court agrees -- there would be a wealth of case law addressing the permissibility of such practice,” and there is not, the reply said. Beard’s lawsuit against the car dealership was dismissed in November in U.S. District Court for Eastern North Carolina. U.S. District Court Judge James Dever ruled Beard provided prior express written consent concerning one of her phones. When she revoked consent on one phone number, she also revoked consent on another, and when she left a voicemail for the dealership asking not to be contacted on that number, the dealer didn’t leave any other voicemails on either line. He ruled the Chevrolet dealer “acted consistently” with her consent.

Plaintiff James Williams is dismissing without prejudice his Telephone Consumer Protection Act claims against Macy’s, said his notice Thursday (docket 3:23-cv-00312) in U.S. District Court for Connecticut in New Haven. Since Williams filed his class action March 9 (see 2303130033), “no defendant has filed an answer, and no defendant has filed a motion for summary judgment,” said his notice. Williams had alleged that May’s sent "repeated unsolicited" automated telemarketing text messages to his residential cellphone to a number listed on the national do not call registry since June.

Plaintiff Phillip Lendenbaum and defendant DoorDash seek a 45-day stay to June 8 in Lendenbaum’s Telephone Consumer Protection Act claims against the company, said their joint stipulation Wednesday (docket 3:23-cv-00370) in U.S. District Court for Northern California in San Francisco. A stay would allow the parties to focus their efforts and determine in “an expedient fashion” whether their dispute can be resolved through mediation, it said. The hotel where Lendenbaum was general manager in 2020 used his cellphone number as the contact for the hotel’s DoorDash deliveries, but the telemarketing calls to his cellphone from DoorDash persisted after he left the job nearly three years ago, alleged his Jan. 25 complaint (see 2301250055).

Plaintiff Daniel Graham seeks leave to file a second amended Telephone Consumer Protection Act complaint to add VoIP provider TalkAsia as his first named defendant, said his motion Wednesday (docket 1:23-cv-00254) in U.S. District Court for Western Texas in Austin. In a period spanning at least five months through August, Graham alleges he received more than a dozen unsolicited calls to his cellphone from the phone number 254-268-7594. His previous two complaints named 25 fictitious John Does as defendants because the originator of the calls was unknown. After serving a subpoena on telecommunications services provider Onvoy, he learned the number was registered to TalkAsia, said his motion for leave. “As no party has appeared in this cause,” Graham assumes his motion for leave is “effectively unopposed,” it said.

Plaintiff Jan Summerton asked Goldco Direct “numerous times” to stop contacting him, but the gold dealer continues to send text messages soliciting sales of its services, alleged a Monday Telephone Consumer Protection Act class action in (docket 3:23-cv-00238) in U.S. District Court for Western Wisconsin in Madison. Goldco doesn’t honor consumers’ requests to opt out of text message solicitations, said the complaint. Summerton brings the suit on behalf of a class defined as all persons in the U.S. who within four years prior to the complaint received texts from the company after requesting to be removed from its contact list. Plaintiff claims violation of the TCPA and Section 64.1200 of the 47 Code of Federal Regulations, seeking statutory damages, plus injunctive relief requiring the company to train telemarketing personnel in compliance and to maintain a do not call list.

The 9th U.S. Circuit Appeals Court set June 28 oral argument at 9 a.m. PDT in Pasadena, California, in plaintiff-appellant Lucine Trim’s appeal of a lower court’s dismissal of her Telephone Consumer Protection Act complaint against Reward Zone for sending her unwanted telemarketing texts, said an electronic-only notice Sunday (docket 22-55517). Her March 16 reply brief said lines will need to be drawn “over what constitutes” an automatic telephone dialing system and an artificial voice under the TCPA (see 2303170046).