Plaintiff Kristy Beckwith and defendant Northeastern Health Group have reached a “resolution in principle” to resolve Beckwith’s Telephone Consumer Protection Act claims against the health insurance company, said the parties’ joint notice Wednesday (docket 0:23-cv-62387) in U.S. District Court for Southern Florida in Fort Lauderdale. The parties anticipate filing a notice of dismissal of the action with prejudice as to Beckwith’s individual claim within 30 days, it said. They ask that all current deadlines and hearings be suspended pending the filing of the notice of dismissal, it said. A magistrate judge ordered the parties Jan. 18 to agree on a mediator and to file a notice of their selection of that mediator by Wednesday (see 2401190034). Beckwith’s Dec. 21 class action alleged that Northeastern made telemarketing calls to residential phone numbers listed on the national do not call registry, in prohibition of the TCPA (see 2312220017).
Mr. Cooper told customers in November that it disabled its payment portal and other “critical IT systems” due to a “system/technical outage,” but its systems were actually “infiltrated by a cyberattack,” alleged a class action Wednesday (docket 3:24-cv-00247) in U.S. District Court for Northern Texas in Dallas.
Spark Energy is engaged in a scheme to sell natural gas and energy services "via cold calls” to residential phone numbers on the national do not call registry, alleged Brian Clark's Telephone Consumer Protection Act class action Tuesday (docket 4:24-cv-00568) in U.S. District Court for Northern California in Oakland. Spark Energy made 10 calls to Clark’s home phone number in Alameda County, California, between March 3 and March 21 trying to pitch services using recorded messages, the complaint said. The plaintiff never gave Spark or any other person or affiliate associated with the company written permission to call him, and his home phone number has been registered on the national DNC registry since December 2007, it said. Clark received a voice message from “Michelle,” requesting a callback about Clark’s natural gas bill, the complaint said. “Upon listening to the voice messages, it was clear that ‘Michelle’ was an artificial voice and not a natural person,” the complaint said. Subsequent messages used “nearly identical wording” and “the same monotone speaking structure,” showing that they were recorded messages “and not a call from a live person,” it said. On March 23, Clark called the callback number, 888-928-3199, and “was immediately connected to Spark,” it said. The defendant may have made more violative calls to Clark’s line that he wasn’t able to log or identify at the time. He includes claims for those calls, “even though the specifics of the dates and times are unknown at this time without the aid of discovery,” it said. Clark claims violations of the TCPA for calls to a number on the DNC and for recorded marketing calls to residential numbers. He seeks awards of $500 for each violation and $1,500 for each willful violation, plus injunctive relief, attorneys’ fees and legal costs.
Brenda Everett’s class action is her “strained attempt” to get money from defendant Exact Care Pharmacy under the Telephone Consumer Protection Act for a call that she “not only consented to but requested,” said the pharmacy’s brief Tuesday (docket 4:23-cv-01649) in U.S. District Court for Middle Pennsylvania in Williamsport in support of its motion for judgment on the pleadings. Everett’s complaint said her number has been listed on the national do not call registry since June 4 (see 2310050003). Congress passed the TCPA to protect individuals from receiving only unwanted calls, said Exact Care’s brief. “Prior express consent is an absolute defense to liability under the TCPA,” it said. Because the plaintiff “consented to the call she now complains of, her claims should be dismissed under Rule 12,” it said. Correspondence between counsel for the parties indicates that Everett doesn’t dispute that she provided Exact Care with express written consent to be called, emailed or texted from ExactCare and its marketing partners about health-related offers using automated technology, it said. Instead, it appears that her alleged dispute about Exact Care’s communication is that, as she now claims, her consent didn’t allow Exact Care to contact her by a prerecorded voice message, it said. In other words, she claims that automated technology doesn’t “encompass prerecorded voice messages,” it said. This “hair-splitting argument” fails for several reasons, it said. It’s “self-evident” that consent to be contacted by automated technology includes consent to be contacted “by all forms of automated technology, including prerecorded voice messages,” said the brief. The TCPA was designed to protect individuals from intrusive, unwanted calls, not calls like the one at issue in this case that an individual “requests and then attempts to manipulate into a TCPA claim,” it said.
McAfee denies all the allegations in plaintiff Victoria Roehrman’s Nov. 30 class action that McAfee’s “widespread practice” of sending “misleading and unsolicited” marketing text messages to consumers violates the Telephone Consumer Protection Act and Indiana’s Deceptive Consumer Sales Act, said McAfee’s answer Tuesday (docket 1:23-cv-02146) in U.S. District Court for Southern Indiana in Indianapolis (see 2312010013). McAfee contends that the Southern District of Indiana lacks subject-matter jurisdiction over Roehrman’s action because the U.S. Supreme Court decided in Barr v. American Association of Political Consultants in 2020 that the TCPA’s automated call restriction was unconstitutional, said its answer. The constitutionality of the statute’s content discrimination element “will remain unresolved until the district court enters final judgment in that case,” it said. The TCPA and its enabling regulations “are also unconstitutional for several other reasons,” including under the First Amendment and the Constitution’s due process clause, it said. Roehrman and her putative class members lack standing to bring the claims alleged in her complaint because any harm allegedly caused by the texts at issue, which McAfee denies, isn’t “fairly traceable” to any violation allegedly committed by McAfee, and because Roehrman may not have suffered any Article III harm, it said.
U.S. Magistrate Judge Edward Kiel for New Jersey in Newark consolidated 15 data breach class actions against HealthEC, a data analytics company, said his signed order Monday (docket 2:24-cv-00026). All 15 cases seek to represent a class of individuals affected by the cybersecurity incident disclosed by HealthEC in December, “with substantially similar questions of fact and law,” said the order. Consolidation under Rule 42 of the Federal Rules of Civil Procedure and Local Rule 42 will serve the court, the parties “and the interests of justice by maximizing efficiency, minimizing redundancies, and eliminating the threat of inconsistent rulings,” said the order.
Two more negligence class actions were filed against loanDepot Tuesday in U.S. District Court for Central California involving a data breach the mortgage lender announced Jan. 8 affecting 16.6 million individuals. Jesse Schmidt of Port Lucie, Florida, and Crowley, Texas, resident Steven Jantzen’s class action (docket 8:24-cv-00200) was filed in U.S. District Court for Western California in Santa Ana, where most of the other negligence actions have been filed, about 10 miles from loanDepot’s Irvine headquarters. Plaintiff and Illinois resident Terry Rogers’ class action (docket 2:24-cv-00766) was filed in the Central District Court in Los Angeles. The plaintiffs, in filings from different law firms, allege that as a result of the breach, they suffered “ascertainable losses in the form of the benefit of their bargain, out-of-pocket expenses, and the value of their time reasonably incurred to remedy or mitigate the effects of the attack, emotional distress, and the present risk of imminent harm caused by the compromise of their sensitive personal information.” Both actions assert claims of negligence, invasion of privacy, unjust enrichment and violation of California’s Unfair Competition Law. Schmidt and Jantzen’s action adds breach of implied contract and violation of the Florida Deceptive and Unfair Trade Practices Act.
Four more class actions -- three against Progress Software Corp. (PSC) and one against Health Care Service Corp. -- were transferred to In Re: MOVEit Customer Data Security Breach Litigation in conditional transfer order 28 (CTO-28), said a Wednesday Judicial Panel on Multidistrict Litigation clerk order. The order is stayed seven days from entry to allow any party to file a notice of opposition, it said.
All Web Leads, the parent company of InsuranceQuotes.com, uses robocalls to market its business “without first obtaining the required express written consent thereby contributing to the barrage of robocalls consumers face,” alleged a Telephone Consumer Protection Act class action Monday (docket 1:24-cv-00521) in U.S. District Court for New Jersey in Camden. Sharon Williams seeks injunctive relief to halt the defendant’s unlawful conduct, “which has resulted in intrusion into the peace and quiet in a realm that is private and personal” to Williams and her class members, said the complaint. The New Jersey resident also seeks statutory damages “and any other available legal or equitable remedies,” it said. At no point in time did Williams provide the defendant with her express written consent to be contacted using prerecorded messages, said the complaint.
Joseph Bond and Tonia Jewell-Vines in their Telephone Consumer Protection Act class action against Allstate (see 2307100007) allege that the classes proposed for certification “number at least in the hundreds,” said the parties’ joint status report Monday (docket 1:23-cv-04385) in U.S. District Court for Northern Illinois in Chicago. The plaintiffs have served discovery requests “aimed at obtaining a more precise number,” said the report. Allstate denies that class certification is “appropriate” in this case, it said. Allstate has responded with various objections, “including objections to the scope of the requests in relation to the classes proposed for certification,” said the report.