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.”

Sibcy Cline real estate brokerage sent James Chams a series of unsolicited text messages beginning New Year’s Day, offering to list his Mason, Ohio, house though his cellphone number was listed on the national do not call registry since October 2022 and he wasn't interested in selling his property, alleged Chams' Telephone Consumer Protection Act class action Tuesday (docket 1:24-cv-00123) in U.S. District Court for Southern Ohio in Cincinnati. Chams has never advertised his cellphone number online or used it for business purposes, said his complaint. The plaintiff also has never done business with Sibcy Cline and has never given the brokerage his consent to call or text his phone number, it said. He phoned the brokerage to inquire why it sent him multiple unsolicited text messages when he wasn’t looking to sell his property. Gayatri Chandran, a Sibcy Cline sales vice president, told him she received his contact information from a real estate lead generation company, Connekter, which indicated she should get in touch with Chams to offer her assistance in listing his property for sale, said the complaint. Chams told Chandran that he made no such inquiry to Connekter and that he wasn’t interested in listing his property for sale, it said. Chams “was very upset about this invasion of his privacy,” it said. The unauthorized solicitation text messages that Chams received from Sibcy Cline have harmed him “in the form of annoyance, nuisance, and invasion of privacy,” it said. The text messages also have occupied his phone line, and have disturbed the use and enjoyment of his phone, it said.

U.S. District Judge Kenneth Bell for Western North Carolina in Statesville denied InvestorPlace Media’s Sept. 27 motion to dismiss plaintiff Courtney Hill’s amended Telephone Consumer Protection Act complaint, said Bell’s signed order Monday (docket 5:23-cv-00111). Hill alleges that InvestorPlace, a financial research firm, violated the TCPA by sending her telemarketing text messages without her consent (see 2309280016). But InvestorPlace’s motion to dismiss contended that the text messages Hill allegedly received bore “no resemblance” to telemarketing, as the FCC has defined it. Hill alleges that most of the text messages she received contained a link that directs the viewer to a specific page of InvestorPlace’s website hosting a briefing or article. The rest simply urged the recipient to visit the InvestorPlace’s website for more details. Hill’s amended complaint doesn’t describe “with specificity” the web pages linked to the text messages she received, said the judge’s order. While the court finds that Hill has met her “limited burden” to plead a plausible TCPA claim, she “will of course be required to establish in discovery that the linked web pages reflect the commercial activity sufficient to satisfy the statutory definition of telemarketing,” it said. Hill can plausibly allege InvestorPlace’s text messages “meet the regulatory definition of telemarketing if their purpose was to promote a commercial transaction with the company,” it said. Though the text portion of the communications “may not directly encourage” Hill to purchase any services, her allegations assert that the embedded links “plausibly tell a different, more mercantile story,” it said. Hill has plausibly alleged that the text messages offering investment advice were a “pitch” meant to draw recipients to InvestorPlace’s website “where they presumably would be encouraged to purchase a subscription,” said the order. The court accordingly finds the text messages don’t merely provide informational content, “but instead plausibly direct the recipient to specific websites that provide free investment advice as a part of an effort to market the purchase of a subscription from InvestorPlace,” it said.

Capital One made debt collection calls to Deborah Duncan using an artificial or prerecorded voice, in violation of the Telephone Consumer Protection Act and California’s Rosenthal Fair Debt Collection Practices Act (RFDCPA), alleged Duncan’s complaint Monday (docket 3:24-cv-00474) in U.S. District Court for Southern California in San Diego. The TCPA was designed to prevent calls like those described in Duncan’s complaint, and to protect the privacy of citizens like her, it said. The California legislature determined that unfair or deceptive collection practices “undermine the public confidence which is essential to the continued functioning of the banking and credit system,” said the complaint. The legislature further determined that there’s “a need to ensure that debt collectors and debtors exercise their responsibilities to one another with fairness, honesty, and due regard for the rights of others,” it said. Its “explicit purpose” in enacting the RFDCPA “was to prohibit debt collectors from engaging in unfair or deceptive acts or practices in the collection of consumer debts and to require debtors to act fairly in entering into and honoring such debts,” it said. Duncan “maintained good standing” on her two Capital One credit card accounts until August, when she fell into financial hardship and was unable to maintain the regular monthly payments, said the complaint. After Duncan went into default on her accounts, agents for Capital One called her cellphone incessantly, using a prerecorded voice, it said. The San Diego County resident received as many as two calls a day from Capital One, “sometimes every day,” it said. Duncan received more than 96 calls from Capital One even after her attorney sent the company a letter Nov. 10 that “clearly revoked” any prior consent to contact the plaintiff via the use of an automated dialing system, text or other method, including calls with prerecorded or automated voice messages, it said. Duncan received at least two calls in a single day, and often more than seven calls in a given week, “based on her recollection of the frequency of calls,” plus the records of calls “that she has in her possession,” it said. Court records show that Duncan’s complaint is the 81st TCPA action filed against Capital One since February 2012.

Plaintiff Chun Wu and National Tax Advisory Services agree to the dismissal without prejudice of all of Wu’s Telephone Consumer Protection Act claims against the tax debt relief company (see 2303160054), said their stipulation Monday (docket 1:23-cv-00679) in U.S. District Court for Colorado in Denver. The parties will bear their own attorneys’ fees and costs, said the stipulation. Wu’s March 2023 class action alleged that the company inundates thousands of consumers with artificial or prerecorded voice messages promoting its services, and that it does so without obtaining their prior express written consent. The case gained some brief notoriety last spring when the defendant’s motion to dismiss called the TCPA “the poster child for lawsuit abuse” (see 2305010009).

Pia Ginder filed a class action Friday in U.S. District Court for Middle Florida in Orlando to stop a campaign by Tax Prep Advocates to market Form 1099 tax credit services for the self-employed through the use of prerecorded telemarketing calls to consumers in violation of the Telephone Consumer Protection Act. Ginder also alleges that Tax Prep Advocates uses automated systems that transmit prerecorded messages to make telemarketing calls into Florida, and that by doing so, it has also violated the Florida Telephone Solicitation Act, said her complaint (docket 6:24-cv-00479). At no point has Ginder consented to receive telemarketing calls regarding Tax Prep Advocates’ services before receiving those calls, it said. The Florida resident’s cellphone number has been listed on the national do not call registry since July 2006, yet she received at least one telemarketing call from Tax Prep Advocates on Feb. 19, said her complaint. The prerecorded call directed her to the company's affiliated website, Your1099Refund.com, it said. Ginder and members of her class have been harmed by Tax Prep Advocates’ conduct “because their privacy has been violated and they were annoyed and harassed,” it said. They were also harmed by the intrusion on their phones that prevented them from receiving “legitimate communications,” it said.

The arguments in Apptness Media Group’s Jan. 22 motion to compel Cindy Luchinske’s Telephone Consumer Protection Act claims to arbitration (see 2401240052) are “without merit” and the motion should be denied, said her response in opposition Friday (docket 2:23-cv-00267) in U.S. District Court for Eastern Washington in Spokane. The case presents “a straightforward contract issue,” said the opposition. In asking whether Apptness has proven the existence of a valid and enforceable arbitration agreement between itself and Luchinske, the answer “is a resounding no,” it said. There’s no “meeting of the minds here because there has never been any meeting at all,” it said. The plaintiff has never had any relationship with Apptness, it said. She never visited the websites on which its motion hinges, it said. She didn’t provide false and inaccurate personal information on those sites, and she never made any agreements with Apptness. “In the face of those truths,” all that Apptness can, and “very dubiously,” claim” in its motion is that some unknown user submitted Luchinske’s information, including her phone number, to various websites owned by Apptness or by nonparty C4R Media, it said. But most of that information is “flat wrong,” and the anonymous user wasn’t Luchinske, it said. Against that backdrop, and because the court must give Luchinske “the benefit of all reasonable doubts and inferences” that may arise on the motion, Apptness has “failed entirely” to satisfy its substantial burden to establish the existence of a valid and enforceable arbitration agreement, it said.

David Almeida filed a class action against Localize City, a real estate acquisition platform that supports real estate agents by using AI technology to convert leads into sales, to "enforce the consumer privacy provisions afforded" by the Telephone Consumer Protection Act, said his complaint Thursday (docket 1:24-cv-01948) in U.S. District Court for Northern Illinois in Chicago. Localize sent unsolicited text messages promoting its real estate listings to the Cook County resident and the putative class members using an automatic telephone dialing system, alleges the complaint. Almeida’s phone number has been listed on the national do not call registry since December 2022, so the text messages Localize sent him were in “clear violation” of the TCPA, it said. Localize’s website says the company believes in the “transformative and limitless potential” of AI built for real estate, said the complaint. By leveraging “deep technologies,” says the website, Localize empowers real estate agents, teams and brokers “to amplify their reach beyond human capabilities and create new opportunities.” Almeida alleges receiving “the first of many automated, unsolicited and unconsented text messages” on Feb. 13 from the same phone number belonging to Localize. The text messages Localize sent the plaintiff “consisted of pre-written templates” that it would have sent to "thousands" of other consumers, said the complaint. Upon information and good faith belief, the language in the messages “were automatically generated and inputted into pre-written text templates without any actual human intervention in the drafting or sending of the messages,” it said. Almeida never provided Localize with express written consent authorizing it to transmit text messages to his cellphone number, it said. The text messages caused Almeida and the class members harm, “including liquidated damages, inconvenience, invasion of privacy, aggravation, annoyance, and violation of their statutory privacy rights,” it said.

Arthur Cochran is “entitled to the records necessary” to argue that Boost Health Insurance “purposely availed itself of the privilege of conducting business in Florida and is subject to personal jurisdiction” there, said Cochran’s reply Thursday (docket 4:23-cv-00473) in U.S. District Court for Northern Florida in Tallahassee in support of his motion to compel discovery (see 2402230043). Boost Health knew and agreed that as part of its joint venture with vendor Work Business Solutions (WBS), the vendor “would make telemarketing calls into Florida to consumers with Florida numbers,” including plaintiff Cochran, said the reply. Boost Health’s opposition concedes that the key issue for the court’s determination about whether personal jurisdiction exists over Boost Health “is whether WBS acted as an agent for Boost,” it said. Cochran alleges that Boost Health determined what leads WBS could purchase and call, and required WBS to send it the call recipient’s contact information as part of any call that was transferred. To identify the “extent” of that illegal “calling conduct,” Cochran seeks discovery “of how many calls Boost Health received that it knew were made into Florida as part of its joint venture with WBS,” said the plaintiff’s reply.

Plaintiff Christopher Prosser voluntarily dismisses, without prejudice, his Telephone Consumer Protection Act class action against Medica Central Insurance “for the purpose of consolidation of multiple cases,” said his notice Wednesday (docket 4:24-cv-00276) in U.S. District Court for Eastern Missouri in St. Louis. The notice “is not to cause any undue delay, nor for bad faith or any other vexatious purpose,” it said. Prosser’s complaint alleged that Medica and its agents use automated systems to make outbound telemarketing calls and text messages to hundreds if not thousands of consumers across the U.S., soliciting consumers to purchase their services and insurance policies, in violation of the TCPA and the Missouri No-Call law (see 2402230006).