Applebee’s engages in unsolicited text messaging and continues contacting consumers after they have opted out of its solicitations, alleged plaintiff Melissa Garzon’s Telephone Consumer Protection Act class action Monday (docket 8:24-cv-00738) in U.S. District Court for Middle Florida in Tampa. Applebee’s sent multiple text messages to Garzon’s cellphone, though her number was listed on the national do not call registry since August 2017, said the Hillsborough County, Florida, resident's class action. The complaint bears screenshots of at least a dozen such text-message solicitations, advertising $13.99 “holiday combos” and other promotional offers. In addition, Applebee’s fails to honor consumer requests to opt out of text message solicitations, said the complaint. That failure demonstrates that the company lacks written policies and procedures for its text messaging marketing, nor does it provide proper training to telemarketing personnel, it said. Applebee’s also doesn’t maintain an internal, stand-alone DNC list, it said.
The parties in a privacy class action vs. NBCUniversal Media and Peacock TV don’t consent to conducting all further proceedings before a U.S. magistrate judge, including motions and trial, said a case management plan and scheduling order Monday (docket 1:23-cv-09433) from U.S. District Judge Vernon Broderick in U.S. District Court for Southern New York in Manhattan. The October lawsuit, brought by Amma Afriyie of Hamilton, Ohio, and Roy Campbell of Glens Falls, New York, alleges software development kits in NBC apps allow app and website developers to “surreptitiously collect and transmit data to third parties,” including viewing history and personally identifiable information (see 2310270060). The parties have not engaged in settlement discussions, said the order. No additional parties may be joined to the case, and no additional causes of action may be asserted after 30 days from the entry of the order “absent a showing of good cause.” Fact discovery is to be completed no later than April 15, 2025, and the case is to be tried to a jury, it said.
The plaintiffs’ opposition to Banner Health’s motion to dismiss their consolidated privacy complaint gives the "false impression” that Banner “surreptitiously discloses” the contents of their “actual medical communications or records to third parties” for profits, said Banner's reply Monday (docket 2:23-cv-00985) in U.S. District Court for Arizona in Phoenix in support of its motion to dismiss. The plaintiffs instead “conflate Banner’s public website with its patient portal,” the opposition said. Cheryl McCulley’s class action, combined with two similar actions in November (see 2311150002), allege Banner installed Meta Pixel and other tracking technologies on its website to “intercept” and send private information to third parties such as Facebook and Google without users’ “informed consent,” in violation of invasion of privacy common law, the Arizona Consumer Fraud Act and the Electronic Communications Privacy Act. But plaintiffs’ claims rely on generalized allegations of how they used Banner’s public website, how they received ads relating to their medical conditions after alleging they used the free public websites, and how a “hypothetical website visitor’s browsing activity may have been transmitted to Meta or other third parties,” said the opposition. Their allegations are “merely speculations about what happens when they intentionally search a public website for medical topics,” it said. Plaintiffs “fail to allege a single fact” about how the Pixel was configured on Banner’s patient portal, saying information available on the publicly accessible websites “stands in stark contrast to the personally identifiable patient records and medical histories protected by these statutes.”
Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
Apple uses anticompetitive practices “to illegally maintain monopoly power over the smartphone market,” plaintiffs Richard Dwyer and Aimen Halim alleged in their class action Monday (docket 5:24-cv-01844) in U.S. District Court for Northern California in San Jose.
Wayfair engages in unsolicited text messaging to promote goods and services, and sends text messages after consumers have opted out of such solicitations, alleged plaintiff Ty Stricker’s Telephone Consumer Protection Act class action Friday (docket 2:24-cv-10740) in U.S. District Court for Eastern Michigan in Detroit. Stricker asked Wayfair Feb. 5 to stop contacting him, yet Wayfair continued sending text messages between Feb. 10 and March 15 to a cellphone number that Stricker listed on the national do not call registry in November 2005, said the complaint. Wayfair’s failure to honor opt-out requests demonstrates it doesn’t maintain written policies and procedures for text messaging marketing, that it doesn’t provide proper training for telemarketing personnel and lacks an internal, standalone DNC list, it said. Wayfair’s “text message spam” caused Stricker and class members harm, “including violations of their statutory rights, trespass, annoyance, nuisance, invasion of their privacy, and intrusion upon seclusion,” the complaint said.
The U.S. District Court for Arizona in Phoenix should deny Rocket Mortgage’s motion to compel Darren MacDonald’s Telephone Consumer Protection Act claims to arbitration “for the same reason other district courts across the country have denied substantively similar motions by Rocket,” said the plaintiff's response in opposition Friday (docket 2:23-cv-02558). That’s because notice of the website terms containing the arbitration agreement that Rocket seeks to enforce wasn’t “reasonably conspicuous” on the website that Rocket claims MacDonald visited, it said. Drawing all reasonable inferences in MacDonald’s favor, “the only reasonable conclusion” to be drawn from Rocket’s website “is that it was designed to obscure the notice constituting users’ agreement to the terms containing the arbitration agreement,” it said. MacDonald alleges that Rocket places unsolicited calls and sends unsolicited text messages to consumers without their consent, including to numbers listed on the national do not call registry (see 2312120001). He further alleges that company employees have listed cold calling as a core part of the job description in their LinkedIn profiles. Rocket filed concurrent motions last month to dismiss MacDonald’s Dec. 11 TCPA class action and to compel his claims to arbitration (see 2402120008).
Plymouth Rock’s Feb. 16 counterclaim alleging that Telephone Consumer Protection Act plaintiff Robert Clough violates the New Jersey Insurance Fraud Prevention Act (see 2402200001) “is nothing more than a contrived attempt to intimidate and bully a consumer for daring to hold it to account for illegal telemarketing,” said Clough’s motion to dismiss the counterclaim Friday (docket 2:21-cv-19343) in U.S. District Court for New Jersey in Newark. Plymouth’s counterclaim alleges Clough runs a “cottage industry” of filing “sham” TCPA lawsuits against insurance companies, of which the class action against Plymouth is only the latest. But the counterclaim “is frivolous on its face” and the court should dismiss it with prejudice, said Clough’s motion. The company is suing Clough for insurance fraud, even though he “has never submitted an insurance claim to Plymouth, never applied for benefits, never been a Plymouth customer, never applied for an insurance policy from Plymouth, and never initiated any communication to Plymouth whatsoever,” said the motion. The "sole basis" for Plymouth’s counterclaim is that when the company’s telemarketer placed an illegal unsolicited call to Clough in August 2021, he answered the call "and played along with the telemarketer’s bogus script so that the telemarketer would divulge who was calling and why, staying on the line long enough to obtain an insurance quote, even though he wasn’t really interested in obtaining an insurance policy," said the plaintiff's motion. Plymouth doesn't claim to have ever received any false information from Clough, "let alone to have ever relied upon it to its detriment or otherwise," it said.
The multidistrict litigation docket was prematurely “and incorrectly” closed March 14 for litigation against Comcast involving the Citrix data breach, said a joint status report (docket (2:23-cv-05092) in Nanez et al v. Comcast Friday in U.S. District Court for Eastern Pennsylvania in Philadelphia. The plaintiffs sued Comcast Dec. 21 for negligence; the class action was one of a dozen included in a January motion (see 2401120011) filed by plaintiff Kenneth Hasson with the Judicial Panel on Multidistrict Litigation, aiming to transfer and consolidate cases with similar allegations and claims arising out of the October data breach. A motion filed jointly by Comcast, Citrix and Hasson on March 14 to vacate that day's order closing the MDL docket and reinstating the MDL transfer motion was denied March 18, said the report. Thursday, Hasson filed a notice of unopposed motion to consolidate cases (see 2403220046); Alyssia Nanez is listed for potential consolidation within Hasson’s motion to consolidate cases, it said. The parties support the request for consolidation, it said.
Former GOP presidential candidate Vivek Ramaswamy opposes Telephone Consumer Protection Act plaintiff Thomas Grant's motion for limited expedited discovery to preserve relevant records of calls that Ramaswamy’s campaign, Vivek 2024, made to Grant and his putative class, said Ramaswamy’s opposition Friday (docket 2:24-cv-00281) in U.S. District Court for Southern Ohio in Columbus.