Plaintiff Melanie Kotlarsz, a resident of Winston-Salem, North Carolina, seeks to stop Integrity Vehicle Services, a Costa Mesa, California, seller of vehicle warranty services, from calling people whose numbers are listed on the national do not call registry, said her Telephone Consumer Protection Act class action Monday (docket 8:24-cv-00569) in U.S. District Court for Central California in Santa Ana. Kotlarsz listed her residential cellphone number on the national DNC registry in August 2004, yet Integrity or its agents called her “many times over the past year,” including twice on Jan. 10 and 11, said her complaint. Kotlarsz repeatedly asked Integrity during those calls to stop calling her, “but the calls persisted, often two or three times per day,” it said. Kotlarsz pleads “direct liability” against Integrity for initiating the calls because Integrity identified itself as the entity making the calls, and its sales reps stated that they worked for Integrity, it said. In the alternative, if Integrity didn't directly make the calls, she pleads the company is “vicariously liable for the conduct of its agents,” said the complaint. The agents making calls “held themselves out as persons authorized” to market Integrity’s services, and identified themselves as Integrity’s employees, it said. “At a minimum,” Integrity’s employees “accepted transfers from a third party that was marketing and soliciting car warranty services” on Integrity’s behalf, it said. “A reasonable person would understand the third party initiating the calls would be doing so at the direction and with the authority” of Integrity, it said. By accepting call transfers from the third party and continuing to solicit car warranties on the calls, Integrity “was ratifying the conduct made on its behalf,” it said. Before the calls at issue in the class action began, Kotlarsz hadn’t had contact with Integrity or used its services, it said. She also has never consented, “in writing, or otherwise,” to receive telemarketing calls from Integrity, it said. She also “has no interest in purchasing a new auto warranty,” it said. Indeed, she has had the same car insurance for years and has no interest in switching, the suit said.

Sephora ran a telemarketing campaign that promote its products and services by repeatedly sending text messages or making phone calls to numbers whose recipients asked to be added to Sephora’s internal do not call registry, “a plain violation of the Telephone Consumer Protection Act,” alleged plaintiff Megan Kelly’s class action Friday (docket 4:24-cv-01648) in U.S. District Court for Northern California in Oakland. Kelly originally consented to receive Sephora’s marketing text messages, but on Jan. 24, she grew tired “of the sheer number" of them daily, so she replied “STOP” to opt out of receiving future texts, said the complaint. Sephora immediately responded that Kelly was “unsubscribed,” but she nevertheless received at least 22 more text messages after her opt-out request urging her to opt back in, it said. “Not only was the number of text messages unreasonable, the times at which she received them was also unreasonable,” said the complaint. On Jan. 31 and Feb. 1 alone, Sephora sent Kelly 21 text messages in total, between 11:25 p.m. and 2:42 a.m., “a clear violation of the TCPA’s calling hours restrictions,” it said. Kelly’s existing business relationship with Sephora “ceased to exist the minute she opted out of its text messaging campaign,” said the complaint. Kelly’s first request to stop texting should have “triggered” Sephora’s obligation under the TCPA to put her number on its internal DNC list, “both under the relevant regulations and under its own internal policies,” it said. But Sephora failed to do that and enforce its internal DNC list policies, it said. Sephora, therefore, “illegally and knowingly” continued to contact Kelly after she requested that Sephora stop texting her, it said.

There are “splits in authority” among the federal circuits on whether unsolicited fax messages from a manufacturer inviting veterinarians to attend free dinner seminars concerning topics served by the manufacturer’s veterinary products can be considered unlawful unsolicited ads under the Telephone Consumer Protection Act, said Ambassador Animal Hospital's reply Friday at the U.S. Supreme Court (docket 23-552) in support of its Nov. 20 cert petition (see 2403050017). The petition seeks to reverse the 7th U.S. Circuit Court of Appeals decision affirming the district court’s dismissal of Ambassador’s TCPA complaint against Elanco, a veterinary pharmaceutical company. Elanco allegedly sent Ambassador two faxes inviting it to the dinner seminar. Ambassador acknowledges that the invitations didn’t explicitly offer to sell products to the recipients. But Ambassador alleges that the invitations were pretext for marketing Elanco’s veterinary drugs and thus were unsolicited ads under the TCPA. Elanco’s contention that this case is an inappropriate vehicle to resolve the unsettled questions of administrative law is “misplaced,” said Ambassador’s reply. The case actually presents “a pure question of law,” it said. SCOTUS shouldn’t decline to decide the issue because faxing is seen as “obsolete” in many industries, it said. Elanco obviously didn’t perceive the technology as obsolete “when it elected to broadcast generic invitations by fax,” it said.

Blackstone Medicial Services, a company that provides in-home sleep testing for apnea and other sleep disorders, inundated plaintiff Layla Wiederkeher’s cellphone with text messages to collect a $171 debt she didn’t owe, alleged her Telephone Consumer Protection Act class action Thursday (docket 2:24-cv-02082) in U.S. District Court for Central California in Los Angeles. Despite Wiederkeher’s multiple responses to “stop,” Blackstone continues to send her the unwanted text messages to the present day, said her complaint. Based on the "content and format" of the text messages, Wiederkeher alleges that they were sent using Blackstone’s SMS “blaster,” which qualifies as a prohibited automatic telephone dialing system as defined under the TCPA, it said. Blackstone’s automated text messaging system “has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator,” it said. Wiederkeher’s counsel has studied the code used “to program other similarly-functioning autodialers in the past, with the assistance of software engineers fluent in Java,” said the complaint. He found that such autodialers, when used in automated mode, “execute code that relies upon random or sequential number generation to both store and produce numbers to be dialed by the dialer,” it said. Text blasting systems work by relying on random or sequential number generators “to instruct the data set to produce telephone numbers to the dialer,” said the complaint. Without that key component, a dialing campaign “would require an agent to manually place the call, through organic decision making,” it said. Without discovery, Wiederkeher won’t be able to demonstrate whether the code for Blackstone’s dialing system contains such random or sequential number generators, it said. Wiederkeher makes these allegations on information and belief based on the volume of text messages she received, “and the fact that all the messages were of a prewritten one-size-fits-all form requiring only minimal customized inputs to the recipient,” it said.

U.S. District Judge Stephen Clark for Eastern Missouri in St. Louis scheduled a jury trial to begin March 10 on the remaining Telephone Consumer Protection Act claims brought by Sheila and Dennis Thompson against home entertainment retailer Vintage Stock, said his signed case management order Thursday (docket 4:23-cv-00042). Oct. 15 is the deadline for completing all discovery, said the order. Clark’s Feb. 8 memorandum and order granted Vintage Stock’s motion to dismiss Count II of the Thompsons’ first amended complaint in which they alleged that the retailer failed to institute procedures for maintaining a list of persons who request not to be called (see 2402090027). Clark found that the Thompsons didn’t sufficiently plead factual allegations to demonstrate that the injury they incurred by receiving unwanted text messages is “fairly traceable” to Vintage Stock’s allegedly unlawful conduct of failing to meet the requirements of the TCPA’s Section 64.1200(d). He also found that the Thompsons’ complaint contained no facts connecting Vintage Stock’s alleged failures with their receiving of text messages.

Delinea, a software company that provides cybersecurity solutions for corporations, violated the Telephone Consumer Protection Act by making telemarketing calls to an individual in Southeast Missouri whose number is on the national do not call registry, alleged a class action Thursday (docket 4:24-cv-00394) in U.S. District Court for Eastern Missouri in Cape Girardeau. Plaintiff Edward Koeller’s phone number has been listed on the do not call registry since August 2007, said the complaint. He has never been a Delinea customer, nor did he ever consent to receive calls from the company, it said. But he received calls on Oct. 26, March 7 and March 12, identified as coming from Delinia on caller ID. The March calls came from a caller identifying himself as Ryan, a Delinea employee who tried to sell Koeller cybersecurity products, it said. Koeller informed Ryan on March 7 he was calling a personal phone number and that he wasn’t interested in Delinea’s services, it said. Ryan called again on March 12 to try to sell cybersecurity products and again Koeller told him he wasn’t interested in the service, it said. Koeller and other individuals who received Delinea’s telemarketing solicitations suffered “invasion of privacy and were harassed” by the defendant’s conduct, the complaint said. In addition to TCPA violations, Koeller claims violations of the Missouri Telemarketing No-Call List Law. He seeks damages, injunctive relief, attorneys’ fees and legal costs.

Plaintiff Mark Bruder and defendant Charter Communications agree to the dismissal with prejudice of Bruder’s Telephone Consumer Protection Act claims against Charter and Spectrum, with each party to bear its own attorneys’ fees and court costs, said their joint stipulation Wednesday (docket 4:23-cv-01075) in U.S. District Court for Eastern Missouri in St. Louis. The parties filed a settlement notice with the court Feb. 12 (see 2402130043). Bruder’s Aug. 25 complaint alleged that Charter and Spectrum sent automated texts to individuals throughout the U.S. who should have been on their internal do not text lists, and that they did so without obtaining consumers’ prior express written consent (see 2308250040).

U.S. District Judge Susan Brnovich for Arizona in Phoenix denied loanDepot’s motion to dismiss plaintiff Lee Abrahamian’s first amended Telephone Consumer Protection Act class action for failure to state a claim (see 2308080041), said her signed order Wednesday (docket 2:23-cv-00728). She also denied loanDepot’s motion to strike Abrahamian’s class allegations, said her order. The plaintiff seeks damages for the “illegal and unlawful” text messages and calls that loanDepot made to his cellphone number, saying the number has been listed on the national do not call registry since October 2007. But loanDepot argued the complaint "must be dismissed" because Abrahamian failed to allege he “personally listed his number” on the national DNC registry. The TCPA’s regulations require that DNC registrations “must be honored indefinitely,” or until the consumer cancels the registration or the database administrator removes the telephone number, said the judge’s order. The court reads this language to mean that as phone numbers change hands, the DNC registry may not always reflect which consumers requested to be included, it said. The court therefore finds that the language includes the term “indefinitely” to remove the “ambiguity” of which numbers should be protected, it said. At this stage of the case, the court “is permitted to draw reasonable inferences,” and look to the allegations in the light most favorable to the plaintiff, said the order. Regardless of any “textual analysis,” it remains a “reasonable inference” under these facts that Abrahamian registered his phone number with the DNC registry, it said. On loanDepot’s next assertion that Abrahamian can’t establish that the calls at issue qualify as telephone solicitations, the court agrees with him that the calls and the text he received were solicitations, it said. The plaintiff has adequately pleaded that he didn’t provide his phone number to loanDepot or make any sort of business inquiry with the company, the order said. Though the court recognizes that the first call Abrahamian received, without more, “would be insufficient to save this claim, it was immediately followed by a text message” soliciting his business, it said. The defendant then called Abrahamian a second time, it said: “This suggests a common purpose to the calls, especially when taken in conjunction with the text message.”

Core Home Security contends that it had prior express consent of Victoria Starr-Harris and her putative class members to receive Core’ solicitations on their cellphones, said the security installation and monitoring company’s answer Wednesday (docket 0:24-cv-60250) in U.S. District Court for Southern Florida in Fort Lauderdale to Starr-Harris’ Feb. 14 Telephone Consumer Protection Act class action (see 2402140062). That such consent “was never validly revoked,” said Core. As a matter of “business practice,” Core and its agents “only make sales calls to prospective customers who have provided prior express written consent,” said its answer. The plaintiff and her putative class members “failed to revoke that consent at any time,” it said. It contends that a Core agent named Cory phoned Starr-Harris on her cellphone, and specifically asked her: "Do we have permission to call you here, if we needed to?" She responded: "Correct, correct," according to the company. A recording of that phone call has already been produced to Starr-Harris, said its answer. Core “rigorously and in good faith” complies with all applicable state, federal and local laws and regulations concerning its calling activities, said its answer. Its business practices and procedures, including opt-in mechanisms, “have been independently audited for TCPA compliance,” and those practices and procedures “have been found to be in compliance with the TCPA and applicable regulations,” it said. Maintaining Starr-Harris’ claims as a class action “is inconsistent with the legislative intent of the TCPA,” said Core. Congress intended that claims under the TCPA proceed as individual actions, it said. The TCPA’s legislative history “supports a conclusion that class actions were not intended,” it said. Congress envisioned the statute “as providing a private right of action to consumers receiving the specifically prohibited communications,” it said. In holding that a class action couldn’t proceed under the TCPA, one federal district court “determined that the statutory remedy is designed to provide adequate incentive for an individual plaintiff to bring suit on his own behalf,” it said.

SunPower, a nationwide marketer of solar power systems, contracted with Photon Rainbow, a local installer, to run an “unlawful telemarketing conspiracy,” in violation of the Telephone Consumer Protection Act and Section 22 of the New Mexico Unfair Practices Act (UPA), alleged plaintiff Laurence Barker’s Feb. 3 complaint in 2nd Judicial District Court in Bernalillo County, New Mexico. The case was removed Wednesday to U.S. District Court for New Mexico in Albuquerque. The UPA, like the TCPA, “is intended to protect consumer privacy by prohibiting certain telemarketing calls,” and to provide for transparency “by requiring that telemarketers identify themselves and who they are calling for during the calls,” said Barker’s complaint. SunPower approves and controls contracts and agreements for telemarketing, “and authorizes and controls payments to the persons who make the actual telephone solicitations,” including the defendant Jane Doe agents who also are co-conspirators, it said. The Jane Does “refuse in their marketing calls to identify themselves or where they are located as required by law for telemarketing,” it said. Barker asks the court's help to discover the Jane Does' “true identity and whereabouts” so that a summons can be served on them, it said. SunPower “controls, prepares and approves standardized telemarketing messages and sales pitches directed at consumers,” including those that Barker received without his consent, it said. SunPower and Photon use robocalling “because it allows for thousands of automated sales calls to be initiated in a very short period of time,” said the complaint. Their sales representatives “only need actually spend time on the phone with consumers” who respond affirmatively to the sales pitches, it said. The defendants thereby “illegally shift the cost of aggravation and wasted time to the public at large and away from themselves where it belongs,” it said. SunPower and Photon “reserve all rights to assert any defense” against Barker’s allegations, including motions to dismiss under Rule 12, said their notice of removal.