Plaintiff Joshua Them and defendant American Express National Bank agreed to terms to settle Them’s claims that American Express violated the Telephone Consumer Protection Act, said a settlement notice Thursday (docket 3:22-cv-01585) in U.S. District Court for Southern California in San Diego. The settlement is “subject to the full execution of a confidential agreement,” said the notice. Them’s attorneys plan to file a request for dismissal with prejudice within 30 days, it said, asking that all future hearings and deadlines in the case be vacated. Them’s complaint alleged American Express inundated him with daily debt collection calls made with an automatic telephone dialing system or prerecorded voice, often as much as four times a day, in violation of the statute (see 2210170041).

U.S. District Judge Kent Wetherell for Northern Florida in Pensacola signed an order Dec. 7 (docket 3:22-cv-21243) authorizing Telephone Consumer Protection Act defendant Parler to file a limited reply to correct what Parler calls “factual inaccuracies” in plaintiff Jordan Copeland’s pleadings, including his now-debunked assertion that Kanye West was trying to buy the right-leaning social media platform. Wetherell “sees no reason for a reply addressing anything related to Kanye West because that has nothing to do with this case,” his order said. He also sees no reason for a reply addressing the alleged inaccuracies because the court “is capable of discerning the facts from pleadings and affidavits,” it said. Two other issues do warrant a reply, it said. Wetherell wants discussion on whether Parler’s affidavits give the court “sufficient information to conduct the necessary analysis” to determine whether Copeland agreed to Parler’s terms of service because the affidavits don't reflect how the user agreement was presented to Copeland for his assent, his order said. He also invited debate on any impact of the 9th Circuit’s U.S. Court of Appeals April 5 decision in Berman v. Freedom Financial Network, in which the panel affirmed the district court’s order denying defendants’ motion to compel arbitration in a putative class action under the TCPA. The panel concluded, the decision said, that the defendants’ webpages didn't provide “reasonably conspicuous notice” of terms of service “because of the small font size and format and because the fact that a hyperlink [that] was present was not readily apparent.” Wetherell’s order said a third issue “warrants briefing by both parties.” He wants to know whether, if he determines that Copeland agreed to arbitration, his court has jurisdiction to compel arbitration because the arbitration provision includes a D.C. “forum selection clause.” Parler’s reply is due Wednesday, limited to the three issues, and Copeland’s sur-reply is due Dec. 21, the order said.

Gannett violates the Telephone Consumer Protection Act by authorizing telemarketing calls without consent to consumers who registered their phone numbers on the do-not-call registry or who were called despite asking for the calls to stop, alleged a class action Wednesday (docket 2:22-cv-01464) in U.S. District Court for Eastern Wisconsin in Milwaukee. Gannett outsources its customer service and customer retention programs to a vendor, A Marketing Resource (AMR), for the unlawful calls to plaintiff Jean Zoulek, a Hubertus, Wisconsin, consumer, and the putative class, said the complaint. “Gannett provides lists of consumer phone numbers to AMR, including those that have subscribed to their publications in the past, for the sake of telemarketing their subscription services to them,” it said. Gannett pays AMR for each subscription renewal it generates, it said. “Numerous consumers have posted complaints online about calls they received from AMR, including complaints from consumers who received unsolicited calls after telling AMR employees to stop calling,” said the complaint. The FCC “has instructed that corporations such as Gannett may not avoid liability by having their telemarketing outsourced,” it said. Zoulek’s class action seeks injunctive relief and statutory damages. Neither Gannett nor AMR commented Thursday.

U.S. District Judge Wilhelmina Wright for Minnesota in St. Paul signed an order Wednesday (docket 0:22-cv-02377) dismissing with prejudice plaintiff Chester Graham’s Telephone Consumer Protection Act class action against Comcast. Graham consented to the dismissal Nov. 21 (see 2211220003). The case gained some brief notoriety when Comcast challenged the TCPA’s constitutionality on grounds that its statutory damages provisions violate the safeguards guaranteed in the Fifth, Sixth, Eighth and 14th amendments because they enable excessive fines that are grossly disproportionate to any actual harm that TCPA plaintiffs may suffer (see 2211080031).

Kohl’s needs a 30-day deadline extension to Jan. 6 to answer plaintiff Mary Graehl’s complaint alleging the retailer violated the Telephone Consumer Protection Act, said its unopposed motion Tuesday (docket 2:22-cv-01341) in U.S. District Court for Eastern Wisconsin in Milwaukee. Graehl’s complaint, the second TCPA action against Kohl’s in as many months, alleges Kohl's inundated her with “harassing” debt-collection phone calls, causing her “concrete harm” as a result.

Spectrum Cable “routinely violates” the Telephone Consumer Protection Act “by using an artificial or prerecorded voice in connection with nonemergency calls it places” to phone numbers assigned to a cellular service, and does so “without prior express consent,” alleged a class action Tuesday (docket 5:22-cv-01304) in U.S. District Court for Western Texas. Spectrum began placing calls to San Antonio resident Irene Talamantez in January, “intending to discuss an account other than one” in her name, said the complaint. Spectrum placed “dozens of calls” to Talamantez, even though she “does not have, nor did she have,” a Spectrum account, it said. The calls continued even after Talamantez told Spectrum to stop, it said. The company didn’t respond to requests for comment.

A three-judge panel at the 9th Circuit U.S. Court of Appeals voted to deny the Nov. 23 motion of defendant-appellee Porch.com to stay the 9th Circuit’s Oct. 12 mandate reversing a lower court’s dismissal of a Telephone Consumer Protection Act class action. Judges William Fletcher and Daniel Bress voted to deny the motion, and Judge Sandra Ikuta voted to grant it, said their order Tuesday (docket 20-35962). Porch.com sought the stay to allow for filing a petition for writ of certiorari to the Supreme Court. In reversing the lower court’s dismissal, the 9th Circuit ruled cellphones are “preemptively residential” even when used for both personal and business purposes, and that businesses are “entities” under the TCPA, giving them standing to sue over TCPA violations (see 2210130080).

U.S. District Judge John Kness for Northern Illinois in Chicago instructed plaintiff Thomas Gebka to consider amending his Telephone Consumer Protection Act complaint against State Farm, now that State Farm has filed a motion to dismiss the case (see 2212050027), said a minute entry Monday (docket 1:22-cv-05546). The court’s standing order on motions to dismiss gives the nonmoving party the right to amend its pleading once within 21 days, said Kness. If Gebka opts to amend his pleading, State Farm will have 21 days to file either an answer or a renewed motion to dismiss, he said. If Gebka instead chooses to litigate the motion to dismiss, he must file his response within 28 days, and State Farm must file its reply within 14 days, he said. In his response, Gebka “must also address whether any alleged deficiencies identified by the motion to dismiss are curable by amendment,” said the judge.

The 9th Circuit U.S. Court of Appeals, in its Nov. 16 decision in Borden v. eFinancial (docket 21-35746), “embraced the holding” of the Supreme Court in its Facebook v. Duguid 2021 ruling, narrowly interpreting the meaning of an automatic telephone dialing system under the Telephone Consumer Protection Act, “and did not rely on an arguable ambiguity in Facebook to avoid its implications,” said Sheppard Mullin in a Nov. 20 analysis. Consumer David Borden sued eFinancial in a putative TCPA class action, alleging eFinancial used a “sequential number generator” to pick the order in which to call consumers who had provided their phone numbers, Sheppard Mullin said. Borden claimed eFinancial’s equipment generated a sequential string of numbers, which were then stored and assigned to a customer’s telephone number. Borden said a footnote in the Supreme Court’s Facebook decision supported his position when it said an autodialer might use a random number generator to determine the order in which to pick phone numbers from a preproduced list. The district court dismissed his case, ruling eFinancial didn't use an ATDS. On appeal, the 9th Circuit affirmed, saying an ATDS must randomly or sequentially generate telephone numbers, not just any number as Borden argued. “The ongoing litigation over the meaning of ATDS demonstrates that companies should still do what they can to ensure they are obtaining prior express consent before making auto-dialed calls or text messages,” said the law firm.

Plaintiff Thomas Gebka “fails to allege any facts to support any vicarious liability theory that could hold State Farm liable” for calls made to his phone in violation of the Telephone Consumer Protection Act, said State Farm’s memorandum of law Friday (docket 1:22-cv-05546) in support of its motion to dismiss Gebka’s Oct. 10 class action (see 2210110009). Gebka “now brings two causes of action against State Farm under the TCPA, despite having pursued some of the same calls in a TCPA lawsuit against Allstate,” it said. Gebka "sustained no injury from calls he invited and therefore lacks standing with regard to those calls,” said State Farm. He invited the calls he received from the independent contractor agents working for State Farm “when he provided the lead generator with his name, email address, zip code, and make and model of his automobile and therefore must have expected to receive insurance quotes,” it said.