Plaintiff Lee Cunningham objects to the recommendations in a July 7 report from U.S. Magistrate Judge Chad Bryan for Middle Alabama in Montgomery that his Telephone Consumer Protection Act claims against Southern Power be dismissed as frivolous (see 2307110043), said Cunningham’s response Thursday (docket 2:22-cv-00621). The utility contends Cunningham has no basis for believing, and in fact knows, Southern Power isn’t the party that allegedly called him, in violation of the TCPA (see 2304280041). Cunningham, an in forma pauperis (in the manner of a pauper) and pro se plaintiff, contends Bryan erred when he concluded the TCPA claims were frivolous, said his response. “A finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them,” it said. But an in forma pauperis complaint may not be dismissed “simply because the court finds the plaintiff's allegations unlikely,” it said.

Montgomery Ward hounded plaintiff Sophia De La Torre with at least 20 debt collection calls, despite her repeatedly telling the online retailer to stop, alleged her Telephone Consumer Protection Act complaint Tuesday (docket 3:23-cv-00484) in U.S. District Court for Western Wisconsin in Madison. De La Torre previously obtained a line of credit through Ward’s to buy personal and household goods, but due to financial difficulties she fell behind on her monthly payments, said the complaint. Frustrated with the “persistent” calls, she contacted Ward’s and told its representative of her inability to pay, demanding that the calls stop, it said. She repeated her do not call requests several more times, it said. “Rather than being understanding” of De La Torre’s “situation and requests,” Ward’s continued placing the calls, it said. “Seeing no end” to the company’s “relentless conduct,” De La Torre “was forced to hire counsel and her damages therefore include reasonable attorneys’ fees incurred in prosecuting this action,” it said.

U.S. Magistrate Judge Beth Jantz for Northern Illinois in Chicago ordered counsel for plaintiff Thomas Gebka and defendant State Farm to meet and confer and submit a joint proposed discovery plan by Aug. 1 in Gebka’s Telephone Consumer Protection act class action against the insurer, said a docket entry notification Tuesday (docket 1:22-cv-05546). U.S. District Judge John Kness on July 12 referred the case to Jantz to supervise discovery when he denied State Farm’s motion to dismiss Gebka’s TCPA amended complaint for failure to state a claim (see 2307120033). The joint proposed discovery plan should include proposed deadlines for the issuance of initial disclosures and a due date for the issuance of initial written discovery requests, plus a fact discovery deadline and whether any expert discovery is anticipated, said the notification.

U.S. District Judge Joseph Rodriguez for New Jersey in Camden granted Vision Solar’s motion to dismiss plaintiff Brennan Landy’s first amended complaint for alleged Telephone Consumer Protection Act violations because Landy failed to provide “the sufficient foundation” for the claim that Vision Solar “does business under the fictitious name Solar Exchange,” said his signed order Monday (docket 1:21-cv-20241). Landy alleges in the amended complaint that during one of the unlawful calls he received, the call center operator told him that Solar Exchange and Vision are “partner companies,” said the order. That contradicts Landy’s assertion that Vision Solar and Solar Exchange “are not partner companies but are the same company,” it said. One of the five new robocall enforcement actions the FTC announced Tuesday to debut the multi-agency Operation Stop Scam Calls “enforcement sweep” (see 2307180035) targeted Solar Xchange (with a different spelling), a seller of residential solar panels, and its lead generator, Vision Solar, treating those defendants as separate companies. The complaint (docket 2:23-cv-01387) filed Friday in U.S. District Court for Arizona in Phoenix by the FTC, DOJ and Arizona Attorney General Kris Mayes (D), alleges the companies were responsible for placing tens of millions of illegal robocalls to phone numbers on the national do not call registry.

Debt collector National Recovery Agency “routinely violates” the Telephone Consumer Protection Act by using an artificial or prerecorded voice to phone consumers without their prior express consent, alleged plaintiff Theresa Soto’s class action Tuesday (docket 2:23-cv-01411) in U.S. District Court for Arizona in Phoenix. Soto estimates the company hounded her with at least 22 debt collection calls intended for an account holder she doesn’t know, said her complaint. She alleges the calls invaded her privacy, intruded into her life and caused “a private nuisance,” it said.

Though Comcast Cable denies the allegations of former subscriber Na’eem Betz that it violated the Telephone Consumer Protection Act by hounding him with calls offering him a discount on an old account (see 2304280051), his allegations “fall squarely within the arbitration provision that he agreed to as a Comcast customer,” said Comcast’s motion Monday (docket 1:23-cv-01177) in U.S. District Court for the District of Columbia to compel Betz’s claims to arbitration. Comcast also moved to stay the litigation pending the outcome of that arbitration. Comcast’s counsel conferred with Betz twice in June, and the pro se plaintiff indicated “he opposes the relief requested in this motion,” it said.

U.S. District Judge John Adams for Northern Ohio in Akron granted the joint request of plaintiff Matthew Dickson and defendant Direct Energy to stay Dickson’s remanded Telephone Consumer Protection Act complaint, said Adams’ signed order Thursday (docket 5:18-cv-00182). The parties requested the stay while the U.S. Supreme Court considers Direct Energy’s forthcoming cert petition seeking review of the 6th Circuit’s reversal of the district court’s order dismissing Dickson’s lawsuit for lack of Article III standing (see 2307130036). The parties should file a notice when it’s “appropriate to lift the stay,” said Adams’ order.

The parties in Bryan Reo’s claims against Allstate for alleged Telephone Consumer Protection Act wrongdoing (see 2302220037) expect to exchange pre-discovery disclosures by July 21, said their joint planning report Thursday (docket 1:23-cv-00329). The parties propose a Jan. 19 expert discovery cutoff deadline, it said. Pro se plaintiff Reo alleges Allstate violated the TCPA by contacting him in December, said the report. He also claims Allstate received his contact information from the Ohio Department of Motor Vehicles in violation of the Driver's Privacy Protection Act, it said. Allstate’s defense asserts Reo requested and consented to be contacted per the website OneCarInsurance.com, it said. Allstate intends to conduct written discovery, and if needed, a deposition as to Reo's “request for quotations via the internet,” it said. Allstate may call an IT expert “to investigate and opine” about Reo's “consent to be contacted,” said the report.

Plaintiff Matthew Dickson and defendant Direct Energy want U.S. District Judge John Adams for Eastern Ohio in Akron to stay all proceedings in Dickson’s remanded Telephone Consumer Protection Act complaint against the utility, said their joint notice Wednesday (docket 5:18-cv-00182). Wednesday was the deadline that Adams imposed for a joint filing from the parties detailing how they think the case should proceed after remand, including a proposed discovery schedule and a deadline for any motion practice (see 2307050002). Good cause exists for the stay while the Supreme Court considers Direct Energy’s forthcoming cert petition seeking review of the 6th Circuit’s reversal of the district court’s order dismissing Dickson’s lawsuit for lack of Article III standing, said the joint notice. The parties “strongly disagree” about whether the 6th Circuit’s decision on Dickson’s standing is correct, it said. Dickson maintains that the 6th Circuit’s decision is correct and need not be reviewed, it said. “But the parties do agree that the most efficient course is to stay all proceedings while the Supreme Court decides the issue,” it said. Absent a stay, the “intervening actions” by the parties and the court, including consideration of Dickson’s pending motion for class certification, “could be unnecessary if they are mooted or modified by the forthcoming Supreme Court review,” it said.

The 9th U.S. Circuit Court of Appeals affirmed the district court’s dismissal of plaintiff Clyde Cheng’s Telephone Consumer Protection Act claims against former Rep. Jackie Speier, D-Calif., said the court's majority opinion Wednesday (docket 22-16170) from Judges Sidney Thomas and Morgan Christen. Judge Daniel Bress dissented. The FCC “reasonably concluded” the TCPA doesn’t apply to robocalls “made by federal legislators conducting official government business, including organizing tele-town halls,” it said. The U.S. District Court for Northern California therefore “properly dismissed the suit,” it said. The district court also didn’t abuse its discretion in denying Cheng leave to amend his complaint,” said the opinion. Amending the complaint amendment “would be futile” because Cheng hasn’t offered any new facts that he would add to an amended complaint to contest whether Speier’s robocalls “are subject to the TCPA’s requirements,” it said. In his dissent, Bress said it’s “undisputed” that the TCPA’s prohibitions don’t apply to federal lawmakers conducting their official course of business. But Cheng also sued Speier “in her individual capacity,” and “sovereign immunity” doesn’t bar suits “seeking to impose individual liability on government officials,” said the judge. The question, then, is whether Cheng’s suit “is properly characterized as an individual capacity suit, or one that is really against the sovereign,” he said. Case law shows Cheng’s lawsuit against Speier “is an individual capacity suit to which sovereign immunity does not apply,” he said. Cheng is alleging Speier “committed tort-like wrongdoing in the form of unwanted robocalls,” said the judge. He doesn’t seek a money judgment against the U.S. or Congress, but from Speier herself, he said. Since Speier no longer is in Congress, there’s “no risk that any injunction against Speier in her personal capacity would run against the sovereign,” he said. The district court “therefore erred” in dismissing Cheng’s TCPA claim against Speier in her individual capacity, he said. Bress favored limiting the 9th Circuit’s decision to that issue and remanding to the district court for further proceedings, “including its consideration in the first instance of any other bases for dismissal that Speier might raise,” he said: “That would include whether the TCPA extends to members of Congress in the circumstances alleged, as well as any personal immunity or other defenses that Speier would offer.”