Lawyers for Comcast Cable and Chester Graham, the consumer who is suing the company for alleged Telephone Consumer Protection Act violations, are to meet and confer telephonically by Thursday on a Rule 26(f) report that will be due Nov. 28, said an order signed Tuesday (docket 0:22-cv-02377) by U.S. Magistrate Judge Leo Brisbois for Minnesota. The Nov. 28 report should feature a joint proposed pretrial schedule for the case and a plan for discovery, including the number of depositions and documents expected to be produced, plus “the extent of expert discovery” that will be required, said the order. The case gained some notoriety last week when DOJ filed an acknowledgment of Comcast’s challenge to the TCPA’s constitutionality and signaled its intention to intervene in the case at the appropriate time as a result (see 2211080031). Comcast’s argument is that the TCPA’s 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.

The U.S. District Court for Middle Florida in a Nov. 2 ruling held that a plaintiff didn't have standing to bring a class-action suit alleging a Telephone Consumer Protection Act violation, said a Shipkevich analysis Tuesday. The court recognized that the 11th Circuit U.S. Court of Appeals had previously held that the receipt of more than one unwanted telemarketing call made in violation of the TCPA constitutes sufficient standing for a plaintiff to bring suit, it said. But the court noted that such cases were decided before the Supreme Court case of TransUnion v. Ramirez, “which requires that each member of a purported class have standing in order to recover individual damages,” it said. The court ultimately found that in the Florida case, the allegations in the plaintiff’s complaint were “insufficient to show the plaintiff suffered concrete harm such that he had standing to allege a TCPA violation, and that the plaintiff further failed to allege facts sufficient to bring a class action suit,” it said.

An Oct. 26 opinion by U.S. District Judge Noel Hillman for New Jersey in Camden demonstrates that a defendant may successfully defend a Telephone Consumer Protection Act action by “asserting relevant counterclaims,” said Faegrer Drinker in an analysis Monday. The judge granted default judgment to defendant Slack in its breach of contract counterclaim against a plaintiff who deliberately sent himself more than 1,500 text messages but represented that the texts were unsolicited and sent improperly by Slack, in violation of the TCPA. Slack alleged that plaintiff Gino D’Ottavio, whom it called a serial filer of TCPA lawsuits, abused a feature on Slack’s website by entering his own phone number and clicking a “send link” button in an effort to manufacture a complaint. Hillman’s opinion (docket 1:18-cv-09082) agreed with Slack that D’Ottavio “breached his contract” with Slack “and acted in bad faith by sending himself text links.” Hillman further found that Slack was injured by D’Ottavio breach “because it had to engage in litigation and incur related expenses,” said Faegrer Drinker. The decision “highlights the importance of scrutinizing a plaintiff’s allegations of harm. If early motion practice is not successful, defense counsel should explore plaintiff’s conduct in connection with alleged offending conduct via targeted discovery requests.” The law firm advised potential TCPA defendants to “review and revise their terms of use to ensure their terms prevent professional plaintiffs from trying to manufacture TCPA claims.”

Kohl’s, for the second time in as many months, was accused of Telephone Consumer Protection Act abuses through its debt collection activities when Carson City, Nevada, consumer Mary Graehl filed a complaint Monday (docket 2:22-cv-01341) in U.S. District Court for Wisconsin in Milwaukee alleging the retailer inundated her with “harassing” phone calls. Graehl’s complaint alleges she has suffered “concrete harm” as a result of Kohl’s actions, including “numerous violations of her state and federally protected interests to be free from harassing and abusive debt collection conduct,” it said. A Hennepin County, Minnesota, consumer accused Kohl’s last month of making repeated debt collection calls to his cellphone using a robodialer (see 2210130072).

Marriott Vacations unlawfully phoned San Diego County resident Janice Lapointe to collect a debt using an automated telephone dialing system and an artificial or prerecorded voice in violation of the Telephone Consumer Protection Act, alleged Lapointe’s complaint Monday in U.S. District Court for Southern California. Marriott approved Lapointe for a consumer loan to buy a timeshare on which she made regular monthly payments until falling into financial hardship, said the complaint. Lapointe estimates Marriott phoned her more than 100 times after receiving a cease and desist letter from her lawyer, it said. The complaint seeks treble damages for knowing and willful violations of the TCPA. Marriott didn’t comment. Marriott’s own May 2021 complaint in U.S. District Court for Eastern Virginia seeks to thwart robocallers from impersonating Marriott telemarketers, alleging trademark infringement and violations of the FTC’s Telemarketing Sales Rule but not violations of the TCPA (see 2211090001).

The 4th Circuit U.S. Court of Appeals granted an extended briefing schedule in DirecTV’s appeal of an Aug. 25 decision at the U.S. District Court for Northern West Virginia, denying its motion to compel arbitration in a Telephone Consumer Protection Act complaint. A joint appendix and DirecTV’s opening brief are now due Jan. 23, with plaintiffs’ response to the opening brief to follow April 10, said a clerk’s order Tuesday (docket 22-2041). Any DirecTV reply brief would be due May 10, said the order. DirecTV and the plaintiffs had jointly filed a motion for the extended schedule, but “any further request for an extension of time in which to file the opening brief and joint appendix shall be disfavored,” said the order.

Lawyers for plaintiff Joshua Them agreed to American Express National Bank's request for a 30-day deadline extension to Dec. 7 to answer Them’s Oct. 15 Telephone Consumer Protection Act complaint, said their joint motion Monday in U.S. District Court for Southern California in San Diego (docket 3:22-cv-01585). The complaint alleges American Express inundated Them 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).

DOJ “respectfully acknowledges” Comcast Cable’s challenge to the constitutionality of the Telephone Consumer Protection Act in answering a complaint last month in U.S. District Court for Minnesota, said the agency in a filing Monday (docket 0:22-cv-02377). Comcast argued that the TCPA’s “statutory damages” provisions “violate the safeguards guaranteed” by the Fifth, Sixth, Eighth and 14th amendments “because they constitute excessive fines and are grossly disproportionate to any actual harm that may be suffered” by TCPA plaintiffs (see 2210190047). Though the U.S. may intervene in any action challenging the constitutionality of any congressional statute, DOJ thinks intervention in the Minnesota case “would be premature at this time” because the case remains in its early stages and it may be resolved without the court having to decide Comcast’s constitutional arguments, it said. The solicitor general must approve U.S. intervention in constitutionality challenges and that approval “generally takes several weeks,” said DOJ. It asks the court to permit the U.S. to intervene within 60 days of any motion or other filing supporting Comcast’s constitutional challenge or seeking a court ruling striking down the challenged provisions, it said.

Lawyers for neither the plaintiffs nor the defendants in the class action alleging that the right-leaning social media platform Parler violated the Telephone Consumer Protection Act and the Florida Telephone Solicitation Act (see 2210240040) have a sense about how big the potential class will be, they told U.S. District Judge Roy Altman for Southern Florida in Miami in a Zoom status conference Monday. “We have just gotten our hands on this” case, and “have very recently become involved,” Parler attorney Jim Humphrey of Graves Garrett told the judge. “We have not engaged in an assessment of the size of this class yet,” said Humphrey. “We haven’t been able to do that with our client, although that is the first thing on our to-do list. I know we are working on that now.” If nobody knows how big the class is, “nobody knows how much to pay,” Altman told plaintiffs’ attorney Manuel Hiraldo. Altman told lawyers for both sides: “I have to tell you, by the way, I could have been so rich if I was a TCPA plaintiff. I get like a thousand of these a day.” Parler has a Nov. 17 extended deadline to respond to the complaint (docket 0:22-cv-61805).

U.S. District Judge John Kness for Northern Illinois granted State Farm’s unopposed motion for a 28-day deadline extension to Dec. 2 to answer an Oct. 10 complaint that it violated the Telephone Consumer Protection Act, said a minute entry Friday (docket 1:22-cv-05546). State Farm’s response was originally due Monday, but newly hired counsel requires additional time to conduct investigation the TCPA allegations and prepare a response, said its Friday motion.