Plaintiff Racheal Paul filed her first amended complaint Monday (docket 6:23-cv-00223) in U.S. District Court for Middle Florida in Orlando, substituting Margaritaville restaurants parent company IMCMV Holdings, for Margaritaville Enterprises in her Feb. 8 class action. She accuses the company of wrongful Telephone Consumer Protection Act conduct (see 2302080056). Paul alleges the company unlawfully sends telemarketing text messages without consent to consumers who registered their numbers on the national do not call registry and to those who have specifically asked Margaritaville to stop texting them. Paul listed her cellphone number on the DNC registry in April 2014, yet she received two text solicitations Jan. 29 offering a free appetizer if she visited a Margaritaville restaurant, said her complaint.

Plaintiff Jean Zoulek filed a voluntary notice of dismissal (docket 2:22-cv-01464) Monday in a class action against Gannett for alleged violation of the Telephone Consumer Protection Act (TCPA). Gannett filed a motion to dismiss last month (see 2302280058), saying Zoulek failed to plead facts that could allow the court to “plausibly infer” Gannett’s A Marketing Resource company violated the TCPA. The complaint didn’t allege Gannett placed any calls to Zoulek, but it asserted the company should be held “vicariously liable” for AMR’s alleged calls. This month, Gannett filed a motion to strike class allegations, saying the complaint purported to identify a class pursuant to Rule 23(b)(2), which applies to class claims for injunctive relief (see 2303070051). Zoulek’s claim for “significant statutory damages” under the TCPA shows the action is “predicated on seeking monetary damages,” or at least monetary damages are only “incidental” to injunctive relief, as required to maintain a class rule, defendants said. Permitting certification under the rule would “allow the monetary tail to wag the injunction dog,” that motion said.

Despite the opposition of pro se plaintiff Bryan Reo, a practicing Ohio attorney (see 2303060003), Allstate stands by its Feb. 28 motion to dismiss the counts of his Telephone Consumer Protection Act complaint that allege the insurer also violated Ohio’s Driver’s Privacy Protection Act (DPPA), Consumer Sales Practices Act (CSPA) and Telephone Solicitation Sales Act (TSSA), said Allstate’s reply brief Friday (docket 1:23-cv-00329) in U.S. District Court for Northern Ohio in Cleveland. Reo’s March 3 opposition brief “ignores the well settled law in Ohio,” and attempts to modify the allegations in his complaint to “avoid dismissal,” it said. A review of the relevant Ohio statutes makes clear that Reo can’t sustain “cognizable claims for violations of these statutes,” it said. It’s also improper to use his opposition brief to amend his complaint, it said. Reo’s DPPA, CSPA and TSSA claims fail as a matter of law, it said. Reo seeks leave to file a sur reply brief because Allstate's reply brief "raises new arguments," cites cases "not previously cited" and attempts to raise "new issues with these new arguments," said his motion Saturday. Reo think Allstate's reply brief "is an imprudent and inefficient use of judicial resources," it said.

Defendant Diamond Resorts denies the allegations in plaintiff Paul Sapan’s class action that it engages in a scheme to sell timeshares via "cold calls" to people whose residential phone numbers are listed on the federal do not call registry, in violation of the Telephone Consumer Protection Act (see 2301240064), said its answer Friday (docket 8:23-cv-00147) in U.S. District Court for Central California in Santa Ana. Sapan “fails to state a plausible claim upon which relief can be granted under any theory or cause of action because the factual allegations are incomplete,” it said. His claims are barred by his “prior express invitation” to be called, it said. His claims also are barred because his registration on the DNC registry “is invalid as a result of holding his cellular telephone number out to the public as a business telephone number,” it said.

Mobile subscribers will lose $58 billion to fraudulent robocalls globally this year, up from $53 billion last year, said a Monday Juniper Research report. Higher losses will be due to the rise in various types of scam calls designed to deceive end users -- such as unauthorized call forwarding or caller ID spoofing -- and to profit from them. Despite the development of robocall mitigation frameworks, such as Stir/Shaken in the U.S., fraudsters’ ability to innovate schemes will drive losses to $70 billion globally by 2027, the report said. There are various judicial and legislative efforts in the U.S. to curb robocalling. Last week, the 9th U.S. Circuit Court of Appeals dismissed Marketing Support Systems’ petition for review (see 2303160078) of an FCC order saying the company violated the Truth in Caller ID Act by engaging in a “large-scale” robocalling campaign. The appeals court said the district court had exclusive jurisdiction over the petition because owner Kenneth Moser sought to avoid enforcement of a forfeiture order. Meanwhile, Arizona Senate majority and minority caucuses supported an anti-robocalls bill last week on the unanimous consent agenda. The House unanimously passed bill HB-2498 last month, meant to fight automated calls and texts.

Lines will need to be drawn “over what constitutes” an automatic telephone dialing system and an artificial voice under the Telephone Consumer Protection Act, said plaintiff-appellant Lucine Trim’s reply brief Thursday (docket 22-55517) in the 9th U.S. Circuit Court of Appeals. Trim is appealing a lower court’s dismissal of her TCPA complaint against Reward Zone for sending her unwanted telemarketing texts. Her appeal “is unlikely to be the end of the battle between privacy advocates and telemarketers” over the TCPA’s definitions, the brief said. “There is no such thing as a random or sequential telephone number generator,” it said. There’s also “no such thing” as an artificial voice that uses a larynx, syrinx and lungs, as the district court defined it, said the brief. “So how can that possibly be the law?” The brief urged the 9th Circuit to give a “rare scathing opinion explaining” why case law on those issues are “so very wrongly decided,” it said. The 9th Circuit has an opportunity “to give guidance to other reviewing courts as cases like this make their way inevitably back up to the Supreme Court,” it said.

Plaintiff Irene Talamantez stipulates to the dismissal with prejudice of all her individual Telephone Consumer Protection Act claims against Spectrum Cable, and to the dismissal of all the class claims without prejudice, said her notice Thursday (docket 5:22-cv-01304) in U.S. District Court for Western Texas in San Antonio. The case hasn’t been certified as a class action, and her notice “disposes of the entire action,” it said. Her Dec. 6 complaint alleged Spectrum “routinely violates” the TCPA by using an artificial or prerecorded voice in connection with nonemergency calls it places to consumers’ phone numbers (see 2212070043). She alleged she received dozens of unsolicited Spectrum calls without her prior consent.

U.S. District Judge Chad Bryan for Middle Alabama in Montgomery denied the Feb. 23 motion of pro se Telephone Consumer Protection Act plaintiff Lee Cunningham for permission to file documents electronically in his case against Southern Power, said his order Wednesday (docket 2:22-cv-00621). Middle District of Alabama civil administrative procedures require pro se plaintiffs to file signed paper originals, said his order. Cunningham’s motion said he was being “unfairly prejudiced” by not having electronic filing privileges. Cunningham’s complaint alleges he was “intentionally, knowingly and/or willfully harassed and abused” by Southern Power’s incessant debt-collection calls. (see 2210200064). Southern Power denies the allegations.

National Tax Advisory Service is a tax debt relief service that calls "thousands of consumers and play[s] artificial or prerecorded voice messages marketing their services,” alleged a Telephone Consumer Protection Act class action Thursday (docket 1:23-cv-00679) in U.S. District Court for Colorado in Denver. The company doesn’t obtain express written consent from consumers before placing the artificial or prerecorded voice calls, in violation of the statute, it said. The TCPA “targets unauthorized calls playing prerecorded voices exactly like the ones alleged in this case” against the company, based on its use of “technological equipment to spam consumers with its advertising on a grand scale,” it said.

Liberty Mutual places unwanted solicitation calls to consumers’ cellphone numbers listed on the national do not call registry, alleged plaintiff Jeffrey Scott’s Telephone Consumer Protection Act class action Tuesday (docket 1:23-cv-10569) in U.S. District Court for Massachusetts in Boston. Scott’s number has been on the DNC registry since August 2010, yet Liberty Mutual phoned him eight times to sell him an insurance policy he didn’t want or need, said his complaint. The Iowa City, Iowa, resident also received multiple solicitation texts he hadn’t consented to, it said. “Without having had the benefit of discovery to show otherwise, Liberty Mutual is directly liable” for the unsolicited calls and text messages “because they were placed or made directly by Liberty Mutual,” the complaint said. If discovery reveals that some or all of the calls and texts were made by third-parties on Liberty Mutual’s behalf, then the insurer is “vicariously liable,” it said. The company didn’t comment Wednesday.