Communications Litigation Today is tracking the below lawsuits involving appeals of FCC actions. Cases marked with an * were terminated since the last update. Cases in bold are new since the last update.
Attorney and pro se plaintiff Bryan Reo, in his first amended complaint against Allstate for statutory violations of the Telephone Consumer Protection Act, added Allstate agent Keith Zabrocki as a new defendant. Reo’s original complaint early in 2023 alleged Allstate shows “flagrant disregard” for TCPA because it got Reo’s contact information through improper means, and it repeatedly called him on his cellphone to solicit insurance products and services (see 2302220037). Allstate’s “initial disclosures” in that litigation identified the Keith Zabroski Agency as the entity responsible for obtaining Reo’s contact information and placing the unlawful calls, said the amended complaint Thursday (docket 1:23-cv-00329) in U.S. District Court for Eastern Ohio in Cleveland. Zabrocki “appears to be domiciled in Ohio and appears to be doing business in Ohio as an unincorporated sole proprietorship,” it said. Reo previously sued Allstate in 2013 and 2022, with both cases settled and resolved before “the accrual of the causes of action” pled in the current case, it said. During the 2022 litigation, Reo gave Allstate “an exhaustive list of his phone numbers,” and made it clear he didn’t want to be called by Allstate or any agents acting on its behalf, it said. But the calls ersisted, sparking Reo to file his 2023 litigation, it said.
Plaintiff Teresa Brown “expressly agreed” to Office Depot’s terms of use and its “conspicuous, broadly written” arbitration provisions, said the retailer’s motion Wednesday (docket 4:23-cv-00287) in U.S. District Court for Northern Oklahoma in Tulsa to compel her claims to arbitration on an individual, non-class, basis.
The issue before the 9th U.S. Circuit Court of Appeals in choreographer Kyle Hanagami’s appeal (docket 22-55890) of a district court’s dismissal order “involves protecting an artist’s creative original work from the advances of technology,” said Hanagami’s attorney, David Hecht of Hecht Partners, in oral argument Wednesday.
FunPlus falsely advertises price discounts for in-game purchases and carries out other “deceptive and unfair business practices” in its Guns of Glory: Lost Island (GOG) mobile game, said a Monday class action (docket 3:23-cv-04122) in U.S. District Court for Northern California in San Francisco. Plaintiff Loren Kelly, a California resident, alleges violations of California’s Unfair Competition and False Advertising laws and Consumers Legal Remedies Act.
Xfinity Mobile’s amended complaint against mobile phone reseller GlobalguruTech (GGT) doesn’t contain any more factual allegations than the original complaint: “It just makes conclusory statements prefaced by ‘upon information and belief’ to try to fill the holes” in the complaint previously identified by the court,” said defendant’s reply brief (docket 2:22-cv-01950) in support of its motion to dismiss four counts of a fraud case in U.S. District Court for Arizona in Phoenix. The court said in June most of the claims in Xfinity’s motion to dismiss were properly pled, but four were lacking. The court previously dismissed a civil conspiracy claim, saying only GGT and Guru Holdings were named. The amended complaint still alleges Jakob Zahara is the sole member that owns and manages the other two named defendants; Xfinity “still has not named any other defendants” but instead alleged a “conspiracy” between defendants and nonparties SNU Unlockers, referred to as an “overseas bulk unlocker,” Juanita S. and Morgan G, whom GGT called “placeholders for co-conspirators to be named later.” Xfinity’s patent infringement claims -- counts 10, 11 and 12 -- should be dismissed because GGT’s use of the Xfinity logo for sellers to use on its website is “permissible under the doctrine of nominative fair use,” it said. Xfinity cited in its response three prongs to determine nominative fair use: that a product is “readily identifiable” without use of the mark; if the defendant used more of the mark than necessary; and if the defendant falsely suggested he was sponsored or endorsed by the trademark holder, said the reply. GGT argued it met all three factors; the court agreed and dismissed counts 10-12, it said. Plaintiffs argued mere usage of the Xfinity logo suggested an affiliation with it, citing cases where defendants used the market in connection with resale of products to consumers. But GGT used the logo only "so the seller of the phone can identify the type of phone they want to sell,” the defendant said. “Plaintiffs must allege more than simply the seller’s use of the Xfinity mark to identify the type of phone to show that GGT was falsely suggesting an affiliation with or an endorsement from Xfinity,” it said. Because the court already gave Xfinity the chance to amend its four claims, “the dismissal should be with prejudice,” said the reply. XM’s Nov. 16 complaint (see 2211300025) alleges the defendants use XM’s financial incentives to buy phones via “unlawful methods” to circumvent policies intended to protect the company and its customers, and then resell the phones “for a substantial profit.”
Communications Litigation Today is tracking the below lawsuits involving appeals of FCC actions. Cases marked with an * were terminated since the last update.
Four months ago, U.S. District Judge Manish Shah for Northern Illinois rejected the FTC’s “unprecedented effort” to use the “substantial-assistance” provision of the Telemarketing Sales Rule “to impose novel liability on Walmart for processing money transfers at the request of customers who later claimed that they had been defrauded by third-party criminals,” the retailer said. It filed a memorandum of law Friday (docket 1:22-cv-03372) in support of its motion to dismiss the FTC’s June 30 amended complaint for failure to state a claim.
A permanent injunction barring Internet Archive from scanning print copies of physical books and lending the digital copies to users of IA’s website without the publishers’ permission would take effect immediately under a proposed consent judgment IA and four book publishers sent Friday in a letter (docket 1:20-cv-04160) to U.S. District Judge John Koeltl for Southern New York in Manhattan. Koeltl granted summary judgment for copyright infringement March 24 and gave the parties until April 7 to propose the appropriate procedure to determine the judgment to be entered in the case (see 2303270006).
Edufficient.com, a college enrollment marketing agency, hired lead generator MediaSpike to find customers for client universities, which in turn retained subcontractors First Impressions and Boomsourcing to place prerecorded robocalls to consumers, in violation of the Telephone Consumer Protection Act, alleged a class action Wednesday (docket 2:23-cv-03923) in U.S. District Court for South Carolina in Charleston. Plaintiff Mark Fitzhenry and his putative class members “never consented to receive these calls,” said his complaint. Because telemarketing campaigns “generally place calls to hundreds of thousands or even millions of potential customers en masse,” Fitzhenry brought the action on behalf of a proposed nationwide class of other persons who received illegal telemarketing calls from or on behalf of Edufficient.com, it said. The complaint also alleges violations of the South Carolina Telephone Privacy Protection Act (SCTPPA), which prohibits a company from making a call to a South Carolina phone number that’s listed on the national do not call registry, as Fitzhenry’s number was before he received the calls. The SCTPPA provides for monetary penalties that are exponentially higher than those under the TCPA -- as much as $5,000 for each willful violation. Edufficient.com and MediaSpike “knowingly and actively accepted business” that originated through the illegal telemarketing calls from Boomsourcing, alleged the complaint. “Despite the fact that First Impressions has received repeated complaints alleging violations of the TCPA, MediaSpike continued to work with First Impressions,” it said. The complaint names Edufficient.com and MediaSpike as co-defendants, but not First Impressions or Boomsourcing.