The U.S. District Court for Southern Florida in Key West should deny in its entirety defendant Adam & Eve’s motion to dismiss plaintiff Lisa Remus’ Telephone Consumer Protection Act claims or to compel those claims to arbitration, said her opposition Friday (docket 4:23-cv-10054). The adult products distributor contends Remus opted in to receive its text messages and agreed any dispute with the company about the texts would be subject to arbitration and no class actions would be permitted (see 2308140013). Remus contends Adam & Eve texted her cellphone without her consent and she never had any contact with the company before receiving its text messages, said her opposition. “As a result, there could not have possibly been an agreement between the parties, let alone an agreement to arbitrate claims,” it said. Even if she had agreed to arbitration, which she didn’t, the company’s arbitration agreement “is procedurally and substantively unconscionable,” it said. The company also “has substantially participated in the litigation, waiving its right to compel arbitration,” it said.

The 11th U.S. Circuit Court of Appeals reversed the lower court’s dismissal of plaintiff-appellant Stephen Muccio’s Telephone Consumer Protection Act complaint against Global Motivation and its principal, Jordan Belfort, and remanded the case for further proceedings (see 2302220004), said its opinion Friday (docket 23-10081). Muccio alleges the defendants sent him and at least 100 other individuals five unsolicited text messages using automated computer systems to solicit the sale of consumer goods or services. He alleged three counts under the TCPA and two counts under the Florida Telephone Solicitation Act, but the lower court dismissed those claims for lack of Article III standing, ruling Muccio suffered no concrete harm. “We conclude Muccio has standing to bring his claims,” said the opinion.

Chief U.S. District Judge Matthew Brann granted plaintiff Zachary Fridline leave to file an amended complaint in his Telephone Consumer Protection Act lawsuit against Integrity Vehicle Group et al., said his signed order Thursday (docket 4:23-cv-01194) in U.S. District Court for Middle Pennsylvania in Williamsport. The defendant argued in a Tuesday filing in support of a partial motion to dismiss that Fridline’s complaint failed to allege calls to a residential number and failed to allege “an unrequited request for internal policies” (see 2308230045). Fridline must file an amended complaint or a response to the motion by Thursday, the order said. If Fridline timely files an amended complaint, the court will deny without prejudice the motion to dismiss as moot, Brann said.

Medicare and Medicaid provider Molina Healthcare violates the Telephone Consumer Protection Act by making prerecorded telemarketing calls to consumers without their consent to solicit annual health assessment appointments, and by placing calls to consumers after they told Molina’s employees to stop calling, alleged plaintiff Lauren Ramey’s class action Thursday (docket 2:23-cv-01312) in U.S. District Court for Western Washington in Seattle. Consumers “posted many complaints online about unsolicited calls they received” from Molina, said the complaint. Despite telling Molina not to call her cellphone number, the Hoquiam, Washington, resident continued to receive unsolicited calls from Molina, including unsolicited prerecorded voicemails, it said. The unsolicited prerecorded voicemails caused Ramey “distress,” because she had to “continually delete the voicemails to free up memory on her phone so other people can leave voicemails,” it said. Her complaint seeks money damages and costs, plus an injunction requiring Molina “to cease all unsolicited calling activity.”

Charter Communications and Spectrum send automated texts to individuals throughout the U.S. who should be on their internal do not text lists, and they do so without obtaining consumers’ prior express written consent, alleged plaintiff Mark Bruder’s Telephone Consumer Protection Act complaint Friday (docket 4:23-cv-01075) in U.S. District Court for Eastern Missouri in St. Louis. Charter and Spectrum violated the Missouri resident’s “privacy and statutory rights,” and caused him “to suffer actual harm by subjecting him to the aggravation that necessarily accompanies the receipt of such repeated and unauthorized automated texts,” said the complaint. The companies’ texts to Bruder’s phone persisted despite his multiple attempts to opt out, it said. He seeks injunctive relief prohibiting future TCPA violations, plus $1,500 for “each and every” text that willfully or knowingly violated the TCPA.

Post University in Waterbury, Connecticut, inundated Lafayette County, Louisiana, resident Sarah Meraz with multiple prerecorded voice message calls to her cellphone to promote its online degree programs, alleged Meraz’s Telephone Consumer Protection Act class action Thursday (docket 6:23-cv-01149) in U.S. District Court for Western Louisiana in Lafayette. Post’s unsolicited prerecorded messages caused Meraz “additional harm, including invasion of privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” it said. The complaint seeks injunctive relief and an award of actual and statutory damages.

Plaintiff Antionette Woodard seeks an entry of default against Healthubb, the vendor she alleges Humana hired to place unlawful telemarketing calls on its behalf, in violation of the Telephone Consumer Protection Act, said her motion Wednesday (docket 1:23-cv-00979) in U.S. District Court for Northern Illinois in Chicago. Healthubb was properly served March 15 but never answered Woodard’s complaint, said her motion. Humana contends it never hired Healthubb for a marketing campaign, nor did it permit Healthubb to access its systems or otherwise directly transfer calls to Humana agents (see 2306140055).

Safeway promotes its goods and services by using unsolicited text-messaging, and it continues to text-message consumers after they opted out of those solicitations, alleged plaintiff Ashley Ehrmantraut’s Telephone Consumer Protection Act class action Tuesday (docket 2:23-cv-01739) in U.S. District Court for Arizona in Phoenix. Ehrmantraut seeks injunctive relief to halt Safeway’s illegal conduct, “which has resulted in the invasion of privacy, harassment, aggravation, and disruption of the daily life of thousands of individuals,” it said. Ehrmantraut asked Safeway “many times to stop contacting her,” beginning June 28, said the class action. But the text messages persisted, it said, as depicted in multiple screenshots of text messages she received throughout the month of July. The screenshots show Safeway doesn’t honor consumer requests to opt-out of text message solicitations, it said. Its failure to do so demonstrates that Safeway doesn’t “maintain written policies and procedures regarding its text messaging marketing,” it said. It also shows Safeway doesn’t provide proper training to its telemarketing personnel, or that it doesn’t maintain a stand-alone do not call list, it said.

Plaintiff Zachary Fridline failed to allege registry on the national do not call list, failed to allege calls to a residential number and failed to allege “an unrequited request for internal policies,” said defendant Vanguard Vehicle Armor in a Tuesday filing (docket 4:23-cv-01194) in support of a partial motion to dismiss a Telephone Consumer Protection Act (TCPA) complaint in U.S. District Court for Middle Pennsylvania in Williamsport. Fridline asserted two TCPA claims: (1) that defendants Vanguard and Integrity Vehicle Group used a prerecorded voice to contact him without his consent, and (2) that defendants contacted him even though his number was registered on the do not call registry, said a brief in support of the motion to dismiss. Fridline fails to allege he registered his telephone number on the do not call list so he can't seek redress for calls placed to him at that number, said the brief, noting the plaintiff doesn’t have a traditional landline phone. Because Fridline’s claims are limited to calls to a residential phone, and he fails to plead that his cellular phone was used for residential purposes, his claim under Section 227 of Title 47 must be dismissed, it said. The plaintiff’s claim under Section 64.1200(d) concerning Vanguard’s internal compliance procedures is also limited to calls placed to a residential line, the brief said. Because Fridline fails to plead that his landline is residential in nature and doesn’t allege he ever requested Vanguard’s internal policies -- and that such a request was denied -- he's unable to state a claim, it said.

U.S. District Judge Thomas Zilly for Western Washington in Seattle granted in part and denied in part the parties’ Aug. 14 stipulated motion to stay until Oct. 6 the Telephone Consumer Protection Act case brought by plaintiffs LaVonne and Wesley Rodgers against DoorDash and to reset initial deadlines in the case, said a clerk’s signed minute order Monday (docket 3:23-cv-05564). Zilly honored the parties’ request to extend DoorDash’s deadline to Oct. 13 for answering the Rodgers’ complaint but declined to enter a stay in the case, said the order. The plaintiffs allege DoorDash repeatedly inundated their personal cellphone with telemarketing calls using an autodialer or an artificial or prerecorded voice (see 2306270004). The parties “have been engaged in diligent preliminary discussions concerning a potential resolution and have determined that this case is ripe for an early mediation,” said their Aug. 14 motion. The parties are in the process of selecting a mediator and scheduling a mediation session, it said. A stay until Oct. 6 would allow the parties “to focus their energies on a potential resolution, and avoid the expense of litigation in the interim,” said the motion.