Aflac seeks the dismissal of Stewart Smith’s second amended Telephone Consumer Protection Act class action for failure to state a claim, said the insurer’s memorandum of law Tuesday (docket 2:24-cv-00679) in U.S. District Court for Eastern Pennsylvania in Philadelphia in support of its motion to dismiss. Smith originally alleged that Aflac violated the TCPA by placing a single telemarketing robocall to his cellphone, despite his number having been listed on the national do not call registry since June 2010 (see 2402160002). Aflac filed a motion April 8 to dismiss Smith’s first amended complaint for failure to state a claim (see 2404090028), said the memorandum. The plaintiff didn’t respond to that motion, but instead, nine days after the deadline to respond had elapsed, he filed a second amended complaint “in an apparent attempt to cure the deficiencies” that Aflac identified in the first amended complaint, it said. But the second amended complaint “sets forth only a few new allegations, most of which are generalized and non-specific,” it said. For largely the same reasons set forth in Aflac’s prior motion to dismiss, the court should dismiss Smith’s second amended complaint with prejudice, it said. Though the plaintiff now alleges that he received more than one call, he still doesn’t allege facts to support his “conclusory assertion” that Aflac itself or someone acting on Aflac’s behalf placed those calls, said the memorandum. His entire theory of liability against Aflac rests on the “single, conclusory allegation” that Aflac placed the calls because an automated message would play indicating the call was from Aflac or that a live caller would tell Smith that the call was from Aflac, it said. But Smith doesn’t allege “any details whatsoever about these calls to support the notion that Aflac was responsible,” it said. For example, he doesn’t identify the number that called him, describe how the live caller identified himself or herself, detail what was said during the live calls or during the prerecorded message, or provide any other facts that could identify Aflac as the caller, it said. Nor does Smith explain how any of the purported calls “were dispositioned,” that he identified the phone numbers that placed the calls as being connected to Aflac, that he spoke with a company representative or agent initially or following a prerecorded message, or that he received a quote or other documentation from the insurer after any calls, it said. Because Smith doesn’t allege sufficient facts to establish that there was a TCPA violation or that Aflac was involved at all, the court should dismiss the second amended complaint under Rule 12(b)(6), with prejudice, it said.

U.S. Magistrate Judge Anthony Porcelli for Middle Florida scheduled a status videoconference for May 24 at 1 p.m. in plaintiff Ruby Gamez’s Florida Telephone Solicitation Act complaint against Redbox, said a text-only docket entry Tuesday (docket 8:23-cv-01497). Gamez alleges that Redbox phones consumers to promote its goods and services without prior express written consent as required by the FTSA (see 2307060003). Her Feb. 29 motion to compel alleges that Redbox hasn’t responded to her discovery requests “in good faith.”

Sienna Marketing & Consulting, which offers business financing services, violates the Telephone Consumer Protection Act by making telemarketing calls and sending text messages without consent to consumers who listed their phone numbers on the national do not call registry, alleged Mark Ortega’s class action Monday (docket 5:24-cv-00487) in U.S. District Court for Western Texas in San Antonio. The plaintiff also alleges that Sienna, which operates as Creative Capital Solutions, violated the Texas Telephone Solicitation Act by making telemarketing calls and sending text messages to consumers in Texas. Ortega has never consented to receive telemarketing communications from Sienna, yet the firm sent him at least 10 text messages and made numerous calls to his cellphone, the complaint said. Around March 7, the Texas resident received a text message from Sienna’s agent, Vincent Palazzo, with Palazzo's contact information, said the complaint. The plaintiff responded by instructing Palazzo not to contact him anymore, but he nevertheless received nine more text messages from Palazzo the very next day, it said. The unauthorized communications that Ortega received from Sienna have harmed him in the form of annoyance, nuisance and invasion of privacy, “and occupied and otherwise disturbed the use and enjoyment of his phone,” said the complaint.

Sun Basket promotes its ready-to-serve meals by initiating thousands of text solicitations to cellphones and residential phones nationwide without consumers’ consent, alleged an April 16 Telephone Consumer Protection Act complaint in Washington County Superior Court in Rhode Island, removed Monday (docket 1:24-cv-00186) to U.S. District Court for Rhode Island. Plaintiff Christopher Laccinole personally listed his cellphone number on the national do not call registry at least two years before he started receiving Sun Basket’s text-message solicitations, said his complaint. The Narragansett, Rhode Island, resident mailed Sun Basket a certified letter to its headquarters in San Jose demanding that the text messages stop, it said. But despite Laccinole’s “clear and unmistakable certified mail request to be left alone,” Sun Basket continued initiating additional text message solicitations to his cellphone, it said. Sun Basket used an automatic telephone dialing system (ATDS) with a random or sequential number generator to initiate the texts, it said. The text messages originated from SMS short code 44763, the complaint said: “A text message containing an SMS short code is characteristic of a message sent using an ATDS that dials a large volume of telephone numbers from a prepared list.” Sun Basket’s unlawful conduct demonstrates that it doesn’t maintain a written policy for maintaining an internal DNC list, nor has it “informed and trained personnel engaged in making text messages on the use of the do-not-call list,” said the complaint. Laccinole “falls in the category of consumers who seek redress to stop unwanted telephone solicitations,” it said.

Imperial Health Holdings, a medical clinic in Pasadena, California, violates the Telephone Consumer Protection Act by “bombarding” consumers with unsolicited fax ads, alleged Jeffery Katz’s class action Monday (docket 3:24-cv-02854) in U.S. District Court for Northern California. The TCPA was enacted to protect consumers from unsolicited and unwanted phone and fax solicitations “exactly like those alleged in this case,” said Katz’s complaint. Imperial’s unwanted fax ads forced the plaintiff and the class members to pay for the costs of paper and toner, it said. Imperial’s faxes also invaded Katz’s privacy and peace, it said. He also was distracted, inconvenienced and annoyed by the unwanted faxes, it said. The complaint seeks an injunction requiring Imperial to cease all unsolicited fax ads, plus an award of statutory damages and treble damages for Imperial’s knowing and willful TCPA violations.

Rebuilt Realty, a real estate broker in Travis County, Texas, has inundated plaintiff Ananda Camargo Chavez’s residential cellphone with at least 219 automated telemarketing text messages since March 2022, though her number has been listed on the national do not call registry for years, alleged her Telephone Consumer Protection Act class action Friday (docket 1:24-cv-00504) in U.S. District Court for Western Texas in Austin. The messages all contain “short links” that advertise properties Rebuilt has available for sale, said the complaint. The messages are all addressed to a person named “Javier,” who Chavez doesn’t know, it said. To call Chavez “Javier” is “disingenuous to Hispanic Americans and labels them all alike,” said the complaint. It’s “akin” to calling all Asian persons “Wei” or "all Caucasians 'Steve,'” it said. None of Rebuilt’s agents is registered as a telephone solicitor with the Texas secretary of state, as state law requires, it said. A “reasonable seller” would investigate the reasons why it would be sending hundreds of messages to numbers on the national DNC registry that didn’t belong to “Javier,” it said. Chavez and all members of the class have been harmed by Rebuilt’s acts of “because their privacy has been violated and they were annoyed and harassed,” said the complaint.

Perpay, a credit card company that targets consumers who are seeking to build or rehabilitate their credit histories, began sending telemarketing text messages to plaintiff Ryan Soud’s cellphone in late January, and the messaging continued despite Soud’s multiple opt-out requests, alleged Soud’s Telephone Consumer Protection Act class action Friday (docket 3:24-cv-00467) in U.S. District Court for Middle Florida in Jacksonville. Soud first wrote “stop” on Jan. 31, and Perpay acknowledged the request that same day, said the complaint. It therefore was “unreasonable” for Perpay to continue texting Soud, in light of its “representations” that Soud “had been opted out of further communications,” it said. As demonstrated by the several screenshots in Soud’s complaint, Perpay “does not honor consumer requests to opt out of text message solicitations,” it said. Perpay’s refusal to honor Soud’s opt-out requests demonstrates that Perpay hasn’t instituted procedures for maintaining a list of persons who request not to receive text messages, said the complaint. “The precise details regarding its lack of requisite policies and procedures” are solely within Perpay’s “knowledge and control,” it said. Perpay’s refusal to honor opt-out requests also demonstrates that the company doesn’t provide the proper training to its telemarketing personnel, and that it doesn’t maintain a standalone do-not-call list, it said. Upon information and belief, Prepay has access to outbound transmission reports for all text messages sent to consumers to advertise or promote its goods and services, said the complaint. These reports show the dates, times, target phone numbers and content of each message sent to Soud and the class members, it said. Prepay also has access to text message logs showing Soud’s and the class members’ inbound opt-out requests, it said.

Blue Hammer Roofing makes or causes to be made telemarketing calls to consumers to solicit business for its services, and does so in violation of the Telephone Consumer Protection Act, alleged Preston Tucker’s class action Thursday (docket 1:24-cv-01287) in U.S. District Court for Colorado in Denver. Tucker personally listed his residential phone number with the national do not call registry in August 2021, yet he received 18 telemarketing calls from Blue Hammer or on its behalf between March 29 and April 5, including six calls on a single day, April 4, alleged his complaint. At no point during the relevant time period did Tucker and Blue Hammer “have a prior existing business relationship” permitting the Dallas-based residential and commercial roofing company to make telemarketing calls to the plaintiff’s residential number, it said. The Weld, Colorado, resident never consented to receiving telemarketing calls from Blue Hammer, said the complaint. The defendant or someone acting on its behalf violated Tucker’s privacy by making each of the unwanted telemarketing phone calls, “and they constitute a nuisance as they are annoying and harassing,” it said. Blue Hammer failed to honor the national DNC registrations of individuals’ residential lines while conducting telemarketing campaigns, it said.

U.S. District Judge Cindy Jorgenson for Arizona denied a motion to dismiss the robocalling complaint brought in May 2023 by the attorneys general of 48 states and the District of Columbia (see 2305230069), said the judge’s signed order Wednesday (docket 4:23-cv-00233). Defendants Michael Lansky, his company Avid Telecom and Stacey Reeves, Avid’s vice president-operations and sales, filed the motion. The judge also denied their motion to stay the case and refer the AGs’ claims to the FCC and FTC for expert review, said her Wednesday order. Jorgenson granted the plaintiffs leave to file an amended complaint within 14 days “to state an alter ego claim of individual liability” against defendant Lansky. Should the plaintiffs not amend their complaint, the defendants will have until June 14 to file an answer, said the order. The judge found there’s no merit to the defendants’ argument that as a matter of law, the plaintiffs’ TCPA claims fail because Avid can’t be found to have ever initiated any calls covered by the TCPA, it said. The defendants also provide no contrary law to that relied on by the plaintiffs, it said. The state AGs allege that Avid, Lansky and Reeves violated the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Telemarketing Sales Rule, the Telephone Consumer Protection Act and state laws in 11 states in facilitating billions of illegal robocalls for years via the company's VoIP services. They allege that Avid received more than 329 notifications from USTelecom's Industry Traceback Group, putting it on notice that it was transmitting illegal robocalls. They also allege that Avid, Lansky and Reeves "knew or consciously avoided knowing they were routing illegal robocall traffic." Robocalls are a "scourge,” said North Carolina AG Josh Stein (D) in a statement Thursday, one of the few AGs to weigh in on the judge's denial of the motion to dismiss. “I’m pleased the court agreed that the defendants’ attempt to dismiss the case was baseless," he said.

Cybersecurity company Zilla Security violated the Telephone Consumer Protection Act by making telemarketing calls to Edward Koeller and his putative class members whose numbers are listed on the national do not call registry, and did so without their written consent, alleged Koeller’s TCPA class action. Zilla also placed calls to pitch its cybersecurity products to people “who had previously asked to no longer receive calls,” alleged Koeller’s complaint Wednesday (docket 1:24-cv-11228) in U.S. District Court for Massachusetts in Boston. The St. Louis-area resident listed his cellphone number on the national DNC registry in August 2007, and the number also has been listed on the Missouri DNC registry since January 2013, it said. Koeller has never been a Zilla customer, and never consented to receive its calls, but received at least two Zilla calls on April 25 and 30, both before 8 a.m., the complaint said. He informed the defendant that he wasn’t interested in the company’s products and services, and complained the calls were coming in to his cellphone at “inappropriate” times of the day, it said. Koeller and other individuals who received these telemarketing calls “suffered an invasion of privacy and were harassed” by Zilla’s conduct, said the complaint.