Plaintiff Thomas Gebka wrongly seeks to hold State Farm liable for calls it didn't make that he claims violated the Telephone Consumer Protection Act, said State Farm Friday in a memorandum of law (docket 1:22-cv-05546) in support of its motion to dismiss Gebka’s amended complaint. Gebka “fails to allege any facts to support any vicarious liability theory that could hold State Farm liable for those calls,” it said. In other previous litigation, he attributed some of the calls alleged against State Farm to Allstate, the memo said. He also “invited the balance of the calls, ostensibly to seek insurance quotes from State Farm independent contractor agents,” it said. As a result, Gebka “fails to establish the requisite standing to sue State Farm,” it said.

Marijuana dispensary Gage Cannabis continued “bombarding” the cellphone of a Michigan resident with unsolicited telemarketing text messages, despite her numerous attempts to opt out, alleged her Telephone Consumer Protection Act class action (docket 1:23-cv-00019) Thursday in U.S. District Court for Western Michigan. At no point did Nicole Sapphire of Kalamazoo County give Gage “her express written consent to be contacted,” the complaint said. To the extent that Gage thought it had “express consent” to contact her for telemarketing purposes, that consent was “expressly revoked” when she responded “stop” to each of the text messages, said the complaint. It seeks injunctive relief to halt Gage’s “illegal conduct,” which resulted in “the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals,” it said. Gage didn’t comment Friday.

Defendant Mercantile Adjustment Bureau’s debt collection services include making “indiscriminate” phone calls “without regard as to whether the recipient of the call is in fact associated with the debt sought,” said Sage Telecom's first amended complaint Wednesday (docket 3:22-cv-02737) in U.S. District Court for Northern Texas in Dallas. Plaintiff Sage, which provides discounted internet and phone service to low-income Texas consumers through state and federally funded programs (see 2212080043), alleges at least 187 subscribers to its LifeLine service received multiple telephone solicitations in the past two years from a phone number owned by Mercantile, in violation of Texas’ Business & Communications Code 302.251. The amended complaint includes screenshots of reviews of Mercantile from consumers who received the calls. One complained of repeated calls from Mercantile, including 13 in that day alone, calling it “harassment.” Another said a Mercantile debt collector asked for personal information, but refused to answer questions about the nature of Mercantile's business, including whether it was a debt collector. A third said Mercantile left a voicemail about a debt she wasn’t associated with, calling the company’s practices an “absolute scam.” Another reviewer said she made a payment through Mercantile for two bills consolidated into one and received a notice two years later that the same bill was still owed. The defendant’s business practices are unlawful under the Texas Telephone Solicitation Act (TTSA), prohibiting a service provider to any Texas resident from first obtaining a registration statement with the secretary of state, paying a filing fee and posting a $10,000 security bond, the complaint alleges. The amended complaint, coming three weeks after Mercantile filed a motion to dismiss for failure to state a claim, added allegations of TTSA wrongdoing that were missing from the original complaint. Mercantile’s Dec. 14 motion to dismiss called Sage’s allegations “nonsensical” because the plaintiff acknowledged Mercantile “never contacted or attempted to solicit anything” from Sage via telephone (see 2212150047). With the filing of Sage's amended complaint, Senior U.S. District Judge Sidney Fitzwater entered an electronic order Thursday denying Mercantile's motion to dismiss as moot. Sage seeks penalties of $5,000 per violation, amounting to $935 million, plus court costs and attorneys’ fees. Mercantile didn’t comment Thursday.

Bank of America exhibited “abusive and outrageous conduct” in its debt collection calls, causing plaintiff Christopher Gonzalez significant “anxiety, frustration and stress,” alleged his Telephone Consumer Protection Act complaint (docket 2:23-cv-00024) Wednesday. BofA breached the TCPA's prohibitions against the use of automated dialing equipment, said the complaint filed in U.S. District Court for Central California in Los Angeles. BofA also violated California's Rosenthal Fair Debt Collection Practices Act, which bars debt collectors from abusive, deceptive and unfair practices, it said. BofA “intended to frustrate and annoy” Gonzalez “at all times of the day" by inundating him with calls to his cellphone, it said. The bank ignored that Gonzalez hired a lawyer to address his BofA account, and it continued making the calls despite the attorney's demands that the calls stop, said the complaint. It estimates Gonzalez received more than 25 calls from BofA after it got notice he had hired an attorney. BofA didn't comment.

U.S. District Judge Anthony Battaglia for Southern California in San Diego signed an order Tuesday (docket 3:22-cv-01697) granting the joint motion and stipulation of plaintiff Mario Vega and defendant Wells Fargo Bank sending Vega’s Telephone Consumer Protection Act dispute with the bank to arbitration. Vega’s action is stayed in its entirety until the arbitration is complete, said the order. The parties are to file monthly status reports, it said. Vega’s action is one of two cases pending in the San Diego court accusing Wells Fargo of TCPA wrongdoing (see 2211210012). Vega filed his complaint Nov. 1, and Wells Fargo never answered it with a motion for dismissal or to compel arbitration.

U.S. District Judge Aileen Cannon for Southern Florida in Fort Pierce signed an order Tuesday (docket 2:22-cv-14425) dismissing without prejudice plaintiff Zachary Sawicki’s Dec. 23 complaint accusing loanDepot of Telephone Consumer Protection Act wrongdoing (see 2212280004). The complaint “does not meet the limited exception to the rule against fictitious party pleading,” said Cannon. The complaint listed John Does 1-10 as co-defendants, describing them as vendors loanDepot hired to place telemarketing calls to consumers on its behalf, but all counts in the complaint purport to be brought against loanDepot alone, she said. Cannon’s order granted Sawicki leave to file an amended complaint by Jan. 16.

The fundraising and telemarketing drive to support Sen. Raphael Warnock, D-Ga., in his Dec. 8 runoff against Republican Herschel Walker caused two Democratic-affiliated groups to run afoul of the Telephone Consumer Protection Act, alleged Lucas Horton in separate, nearly simultaneous complaints Dec. 29 in U.S. District Court for Northern Texas in Dallas. The TCPA and the Texas Business and Commercial Code (TX 302) “were enacted to protect consumers from unsolicited telephone texts like those alleged in this case,” said the Dallas County resident’s complaint against the Democratic Victory Fund PAC (docket 3:22-cv-02913). The defendant, in an attempt to collect as many donations as possible, engaged in “an extremely aggressive campaign” that sent out thousands of texts a day to people who aren’t even “registered to vote, or aren’t even of voting age,” it said. Courts have ruled, and the FCC has declared, that even if an entity “did not actually send a text, but had another do it on their behalf, then they become liable,” said Horton’s other complaint, against End Citizens United (docket 3:22-cv-02916), a group that advocates for campaign finance reform. Neither defendant in Horton’s two lawsuits possessed a telemarketing solicitation certification from the Texas secretary of state, as required under TX 302 (see 2212080043), alleged the complaints. Neither group responded to requests for comment. Warnock defeated Walker in the runoff by less than a percentage point.

There were 1,399 complaints alleging violations of the Telephone Consumer Protection Act filed in all federal jurisdictions in calendar 2022, our tabulation of federal court records found. That was down marginally from the 1,415 TCPA cases filed in 2021, and a 13.7% decrease from the 1,622 in 2020. Our tallies include all cases, active and closed, that originated in the federal courts, or that defendants removed to federal courts from state courts.

Though all of plaintiff Jamil Hindi’s claims will fail when he alleges that Modani violated the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act by sending him automated marketing text messages, his FTSA claim “must be dismissed now because it is unconstitutional.” So said the furniture retailer in a motion for partial dismissal with prejudice Friday (docket 0:22-cv-62219) in U.S. District Court for Southern Florida in Fort Lauderdale. The FTSA violates the First Amendment because “it restricts speech based on its content, so it is subject to strict scrutiny, which it fails,” said Modani. “Even if the FTSA were subject to intermediate scrutiny, it would be unconstitutional,” it said. The FTSA “cannot pass the rigorous requirements of strict scrutiny,” said Modani. A “compelling government interest of the highest order” -- for combating terrorism, for example -- “must support a speech restriction subject to strict scrutiny,” it said. “Curbing the minor annoyance of marketing text messages” isn't such an interest, it said. “Nor can the FTSA survive intermediate scrutiny, even assuming it applies,” said Modani. The FTSA is “far more extensive than is necessary to advance the purported government interest” of protecting consumers from unwanted text messages, it said. But it also leaves in place “unregulated speech that does even more harm to that interest,” it said. “The overbroad and poorly tailored speech restrictions of the FTSA thus render the law unconstitutional no matter what level of scrutiny applies.” Modani's motion for partial dismissal was its first answer to Hindi's Nov. 28 class action alleging the retailer inundated Floridians with 50 different unwanted text-message solicitations since July 1, including a November bombardment keyed to Black Friday promotions (see 2211280035).

Plaintiff Joshua Them voluntarily dismissed with prejudice all his Telephone Consumer Protection Act claims against American Express, said his notice Thursday (docket 3:22-cv-01585) in U.S. District Court for Southern California in San Diego. Them’s Oct. 14 complaint alleged that American Express inundated him with debt collection calls made with an automatic telephone dialing system or prerecorded voice, often as much as four times a day (see 2210170041). The parties have fully resolved the dispute, said Thursday’s notice.