Robert Clough seeks the dismissal of Plymouth Rock’s counterclaim in which the insurer alleges Clough violated the New Jersey Insurance Fraud Prevention Act by running a “cottage industry” of filing “sham” Telephone Consumer Protection Act lawsuits (see 2402200001), said the plaintiff’s brief Thursday (docket 2:21-cv-19343) in U.S. District Court for New Jersey in Newark in support of his motion to dismiss. The counterclaim alleges that Clough falsely misrepresented his interest in seeking automobile insurance policies and quotes, while fraudulently using a third person’s identity without permission. He did so “solely and expressly for the purpose of concocting an otherwise meritless claim” under the TCPA, alleges Plymouth. But the counterclaim “is nothing more than a contrived attempt to intimidate and bully a consumer for daring to hold it to account for illegal telemarketing,” said Clough’s brief. The counterclaim “is frivolous on its face,” and the court should dismiss it with prejudice, it said. Plymouth sues Clough for insurance fraud, even though he “has never submitted an insurance claim to Plymouth, never applied for benefits, never been a Plymouth customer, never applied for an insurance policy from Plymouth, and never initiated any communication to Plymouth whatsoever,” said the brief. Clough “has never even communicated directly with Plymouth,” it said. To the contrary, the sole basis for Plymouth’s claim is that when its telemarketer placed an illegal unsolicited telemarketing call to Clough in August 2021, he answered the call “and played along with the telemarketer’s bogus script so that the telemarketer would divulge who was calling and why,” it said. Clough purposely stayed on the line long enough only to obtain an insurance quote, “even though he wasn’t really interested in obtaining an insurance policy,” it said. Plymouth doesn’t claim to have ever received any false information from Clough, “let alone to have ever relied upon it to its detriment or otherwise,” it said. Plymouth alleges that “some unidentified third party,” not the insurer itself, provided the insurance quote and that that was the end of the matter, it said. Clough didn’t respond to the quote, inquire further, or apply for any insurance policy, and the company “fails to allege how any of this impacted Plymouth in the slightest,” it said. Plymouth “identifies no cognizable damages or harm whatsoever,” it said.

Malwarebytes and its agents, acting as a "common enterprise," knowingly and willfully engage in unsolicited text message marketing to consumers, alleged a Telephone Consumer Protection Act class action Wednesday (docket 1:24-cv-01039) in U.S. District Court for Southern Indiana. Malwarebytes and its agents repeatedly violated the TCPA by sending automated text messages to the plaintiffs and the proposed class without prior express written consent, said the complaint. They also sent telemarketing text messages to Thomas Roehrman and Annamarie Stapinski and the class members while their phone numbers were listed on the national do not call registry, it said. The Hendricks County, Indiana, plaintiffs seek an award of statutory damages for themselves and the class, plus injunctive relief ending Malwarebytes’ unlawful conduct, which has resulted in intrusion into the plaintiffs’ and the class members’ “peace and quiet in a realm that is private and personal” to them, it said. The complaint identifies Wewe Media Group, a Singapore-based marketing network, as a nonparty.

Network Capital Funding is engaged in a scheme to sell mortgage refinance services via cold calls to residential phone numbers listed on the "protected" federal do not call registry, alleged a class action Tuesday (docket 8:24-cv-01335) in U.S. District Court for Central California. Network Capital’s illegal telemarketing calls are prohibited by the Telephone Consumer Protection Act, “which gives victims of junk calls a private right of action to sue for the intrusion on their privacy,” said Paul Sapan’s complaint. Network Capital’s “modus operandi is the same for all the calls in this case,” it said. It either directly or through an agent calls “massive lists of phone numbers” in the U.S. to sell its services without regard to whether those numbers are listed on the national DNC registry, it said. Network Capital or its agents don’t check the DNC registry before making these calls, nor do they engage in any other DNC registry compliance, it said. Network Capital has intentionally violated the TCPA “in a so-far successful attempt to sell financial and/or mortgage packages for years,” it said. Sapan alleges that Network Capital made at least 15 calls to his residential phone number, though that number has been listed continuously on the national DNC registry since December 2007, said the complaint. The Orange County, California resident, never gave Network Capital or any of its agents his express written permission to call him, nor does he have an established business or personal relationship with the company or any of its agents and employees, the complaint said. Past defendants have accused the plaintiff of being one of the “most prolific TCPA litigants in the country,” but Sapan defends himself as a “TCPA Robin Hood” who sues "junk callers" for their illegal calls, “then gives his portion of the recovery to charity” (see 2308310039).

RFR Capital illegally sent telemarketing text messages to numbers on the national do not call registry to promote its business loan services and did so without the recipients’ consent, alleged a Telephone Consumer Protection Act class action Monday (docket 2:24-cv-02636) in U.S. District Court for Eastern Pennsylvania in Philadelphia. RFR “directed its illegal calling conduct into Pennsylvania by sending its text message spam to Pennsylvania area codes,” said Leon Weingrad’s complaint. The Pennsylvania resident’s cellphone number was listed on the national DNC registry for more than a year before he began receiving RFR’s text messages, it said. The number is a residential phone line because it’s assigned to a cellphone exchange service for consumers and isn’t assigned to a telephone exchange service for businesses, it said. The plaintiff doesn’t use the number for business reasons and the number isn’t registered in the name of or associated with a business, it said. Weingrad “never consented or requested in any way” to receive the text messages from RFR, nor did he ever do business with the company, it said. He nevertheless received at least nine automated text messages from the defendant’s number between Jan. 16 and May 28 as part of a telemarketing campaign, it said. The messages “continued relentlessly with substantially similar content,” said the complaint. The messages all included a link to apply at RFR’s website, and some also included a link to schedule a meeting with a company employee, it said. Weingrad and all members of the class have been harmed by RFR’s acts “because their privacy has been violated and they were annoyed and harassed,” it said. The calls also occupied their phone lines, storage space and bandwidth, “rendering them unavailable for legitimate communication,” it said.

Nationwide lender Premium Capital Funding promotes its services by engaging in unsolicited telemarketing, “harming thousands of consumers in the process,” alleged Stephanie Brown’s Telephone Consumer Protection Act class action Monday (docket 8:24-cv-01469) in U.S. District Court for Middle Florida. Brown seeks damages and injunctive relief to halt Premium Capital’s “illegal conduct,” which has resulted in the invasion of privacy, harassment, aggravation and “disruption” of the daily lives of thousands of individuals, said her complaint. The Lakeland, Florida, plaintiff also seeks statutory damages on behalf of herself and members of the class, plus “any other available legal or equitable remedies,” it said. Any of Premium Capital’s violations were knowing, willful and intentional, making Brown and the class eligible for treble damages under the TCPA, it said. Brown personally listed her cellphone number with the national do not call registry in June 2009, and she has since received an email from the registry confirming her number’s appearance on the listing, said the complaint. Yet Premium Capital sent at least four unsolicited text messages to her number, addressed to a person unknown to her and named Douglas, it said. The plaintiff, through counsel, received an email confirmation from Premium Capital asserting that the text messages she received were a “mistake,” due to the company texting to an “incorrect number,” it said. Premium Capital thus acknowledged that it didn’t have consent to send the “violating text messages,” it said. At no point in time did Brown provide Premium Capital with her express written consent to be contacted, in violation of the TCPA’s Section 227(a)(5), it said. Premium Capital “may not allege consent through a third-party lead generator, as the FCC has prohibited such actions,” it said.

A vacation membership club used its call centers to place telemarketing calls to promote goods and services to numbers that were on the national do not call registry, and did so without recipients’ prior express written consent, a plaintiff alleged in a Telephone Consumer Protection Act class action Monday (docket 1:24-cv-01022) in U.S. District Court for Southern Florida. Because Club Esprit's calls were transmitted using technology capable of generating thousands of similar calls daily, Kenneth Johansen brought his action on behalf of a proposed nationwide class of other persons who were sent the same illegal telemarketing calls, the complaint said. Johansen is not a Club Esprit customer and never consented to receive calls from the defendant, it said. But he received at least three Club Esprit telemarketing calls between Feb. 23 and June 11, it said. Johansen specifically requested to no longer receive calls after the defendant contacted him Feb. 23, but he still received calls, it said. Johansen and the other call recipients claim these calls harmed them, it said. For instance, they were temporarily deprived of legitimate use of their phones because the phone line was tied up, and their privacy was improperly invaded, it said. The calls also injured Johansen “because they were frustrating, obnoxious, annoying, were a nuisance and disturbed the solitude” of the plaintiff and the class, it said.

A workout apparel supplier engages in unsolicited text messaging to promote its goods and services, and continues to text-message consumers after they have opted out of those solicitations, alleged a Telephone Consumer Protection Act and Florida Telephone Solicitation Act class action Friday (docket 0:24-cv-61027) in U.S. District Court for Southern Florida. Kourosh Farsian seeks injunctive relief to halt Alphalete Athletics’s illegal conduct, “which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals,” said the complaint. The Palm Beach County, Florida, resident also seeks statutory damages on behalf of himself and members of the class, plus “any other available legal or equitable remedies,” said the complaint. Alphalete has caused multiple text messages to be transmitted to Farsian’s cellphone number, though the plaintiff personally listed his number on the national do not call registry in January 2008, it said. Farsian first asked the defendant to stop contacting him on April 19 but Alphalete continued to send him at least eight more text messages between April 27 and June 13, the complaint said. As demonstrated by the screenshots embedded in the complaint, Alphalete doesn’t honor consumer requests to opt out of text message solicitations, it said. That failure shows that the defendant doesn’t maintain written policies and procedures regarding its text-messaging marketing, said the complaint. Alphalete also doesn’t properly train its telemarketing personnel, nor does it maintain a stand-alone internal do not call list, it said.

U.S. District Judge Timothy Savage for Eastern Pennsylvania in Philadelphia denied Aflac’s motion to dismiss plaintiff Stewart Smith’s second amended Telephone Consumer Protection Act class action (see 2405150017), his signed order said Thursday (docket 2:24-cv-00679). June 28 is Aflac’s deadline for filing an answer to Smith’s second amended complaint, the order said. Smith’s class action alleges that Aflac placed five telemarketing calls to his cellphone without consent and in violation of the TCPA’s do not call rule.

Though the Telephone Consumer Protection Act “expressly prohibits” unsolicited fax advertising, a Delaware marketing services company, routinely sends them directly to recipients or through at least 10 hired John Doe agents, alleged a class action Thursday (docket 1:24-cv-04912) in U.S. District Court for Northern Illinois in Chicago. William Gress, a practicing chiropractor in Homewood, Illinois, received a fax solicitation from Klip-It or its agents on June 4, advertising an “influencer marketing platform” to attract new patients through social media, said the complaint. The defendants, “either negligently or wilfully,” violated the rights of Gress and other recipients in sending the faxes, it said. Gress had no prior relationship with the defendants and hadn’t authorized the sending of fax ads, it said. On information and belief, the June 4 fax “was sent as part of a mass broadcasting of faxes,” it said. The fax didn’t contain an opt-out notice that complies with the TCPA, it said. On information and belief, the defendants have transmitted similar unsolicited fax ads to at least 40 other persons in Illinois, it said. There’s “no reasonable means” for Gress or other recipients of the defendants’ unsolicited fax ads to avoid receiving illegal faxes, said the complaint: “Fax machines must be left on and ready to receive the urgent communications authorized by their owners.”

A Miami spa promotes its goods and services by engaging in unsolicited text-messaging to consumers who have listed their phone numbers on the national do not call registry, alleged a Telephone Consumer Protection Act class action Thursday (docket 1:24-cv-22300) in U.S. District Court for Southern Florida. Alexandra Lyons seeks injunctive relief to halt the Waxmee Salon & Spa’s unlawful conduct, “which has resulted in intrusion into the peace and quiet in a realm that is private and personal” to Lyons and the class members, said the complaint. The Florida resident also seeks statutory damages on behalf of herself and members of the class, plus any other available legal or equitable remedies, it said. The salon sent multiple text-message solicitations to the plaintiff’s cellphone in late May and early June to advertise its June promotions, though Lyons personally listed her number on the national DNC registry 20 years ago, said the complaint. Upon information and belief, the salon maintains or has access to outbound transmission reports for all text messages sent advertising or promoting its services and goods, it said. These reports show the dates, times, target phone numbers and content of each message sent to Lyons and the class members, it said. The plaintiff had not transacted any business with the defendant within the 18 months prior to receiving the unwanted text messages, it said. Lyons also hasn’t made any inquiries about the salon’s products or services within the three months before receiving the text messages, it said. The plaintiff never signed any type of authorization permitting or allowing the salon to send her text-message solicitations, it said.