Sinclair, operator of TennisChannel.com, uses a “wide array of extremely sophisticated tracking technology” that collects its subscribers’ personally identifiable information (PII) and viewing history, and “knowingly discloses” that to third-party analytics and advertising providers, alleged plaintiff Tracy Hyman’s Video Privacy Protection Act class action Monday (docket 2:24-cv-02168) in U.S. District Court for Central California in Los Angeles.
Sephora ran a telemarketing campaign that promote its products and services by repeatedly sending text messages or making phone calls to numbers whose recipients asked to be added to Sephora’s internal do not call registry, “a plain violation of the Telephone Consumer Protection Act,” alleged plaintiff Megan Kelly’s class action Friday (docket 4:24-cv-01648) in U.S. District Court for Northern California in Oakland. Kelly originally consented to receive Sephora’s marketing text messages, but on Jan. 24, she grew tired “of the sheer number" of them daily, so she replied “STOP” to opt out of receiving future texts, said the complaint. Sephora immediately responded that Kelly was “unsubscribed,” but she nevertheless received at least 22 more text messages after her opt-out request urging her to opt back in, it said. “Not only was the number of text messages unreasonable, the times at which she received them was also unreasonable,” said the complaint. On Jan. 31 and Feb. 1 alone, Sephora sent Kelly 21 text messages in total, between 11:25 p.m. and 2:42 a.m., “a clear violation of the TCPA’s calling hours restrictions,” it said. Kelly’s existing business relationship with Sephora “ceased to exist the minute she opted out of its text messaging campaign,” said the complaint. Kelly’s first request to stop texting should have “triggered” Sephora’s obligation under the TCPA to put her number on its internal DNC list, “both under the relevant regulations and under its own internal policies,” it said. But Sephora failed to do that and enforce its internal DNC list policies, it said. Sephora, therefore, “illegally and knowingly” continued to contact Kelly after she requested that Sephora stop texting her, it said.
Blackstone Medicial Services, a company that provides in-home sleep testing for apnea and other sleep disorders, inundated plaintiff Layla Wiederkeher’s cellphone with text messages to collect a $171 debt she didn’t owe, alleged her Telephone Consumer Protection Act class action Thursday (docket 2:24-cv-02082) in U.S. District Court for Central California in Los Angeles. Despite Wiederkeher’s multiple responses to “stop,” Blackstone continues to send her the unwanted text messages to the present day, said her complaint. Based on the "content and format" of the text messages, Wiederkeher alleges that they were sent using Blackstone’s SMS “blaster,” which qualifies as a prohibited automatic telephone dialing system as defined under the TCPA, it said. Blackstone’s automated text messaging system “has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator,” it said. Wiederkeher’s counsel has studied the code used “to program other similarly-functioning autodialers in the past, with the assistance of software engineers fluent in Java,” said the complaint. He found that such autodialers, when used in automated mode, “execute code that relies upon random or sequential number generation to both store and produce numbers to be dialed by the dialer,” it said. Text blasting systems work by relying on random or sequential number generators “to instruct the data set to produce telephone numbers to the dialer,” said the complaint. Without that key component, a dialing campaign “would require an agent to manually place the call, through organic decision making,” it said. Without discovery, Wiederkeher won’t be able to demonstrate whether the code for Blackstone’s dialing system contains such random or sequential number generators, it said. Wiederkeher makes these allegations on information and belief based on the volume of text messages she received, “and the fact that all the messages were of a prewritten one-size-fits-all form requiring only minimal customized inputs to the recipient,” it said.
Delinea, a software company that provides cybersecurity solutions for corporations, violated the Telephone Consumer Protection Act by making telemarketing calls to an individual in Southeast Missouri whose number is on the national do not call registry, alleged a class action Thursday (docket 4:24-cv-00394) in U.S. District Court for Eastern Missouri in Cape Girardeau. Plaintiff Edward Koeller’s phone number has been listed on the do not call registry since August 2007, said the complaint. He has never been a Delinea customer, nor did he ever consent to receive calls from the company, it said. But he received calls on Oct. 26, March 7 and March 12, identified as coming from Delinia on caller ID. The March calls came from a caller identifying himself as Ryan, a Delinea employee who tried to sell Koeller cybersecurity products, it said. Koeller informed Ryan on March 7 he was calling a personal phone number and that he wasn’t interested in Delinea’s services, it said. Ryan called again on March 12 to try to sell cybersecurity products and again Koeller told him he wasn’t interested in the service, it said. Koeller and other individuals who received Delinea’s telemarketing solicitations suffered “invasion of privacy and were harassed” by the defendant’s conduct, the complaint said. In addition to TCPA violations, Koeller claims violations of the Missouri Telemarketing No-Call List Law. He seeks damages, injunctive relief, attorneys’ fees and legal costs.
Tensions appear close to boiling over in plaintiff Dennis Gromov’s false advertising case against defendant Belkin International if Thursday’s joint status report (docket 1:22-cv-06918) is any indication. Gromov’s class action alleges that Belkin advertised power banks for mobile devices in a deceptive manner, and that the chargers don’t deliver nearly the amount of power promised in those ads (see 2301300008). U.S. District Judge Franklin Valderrama granted Gromov’s motion Feb. 28 to compel Belkin’s discovery responses, but Belkin now says it needs 45 days more, until April 30, to respond to the order, said Gromov’s position statement in the status report. Belkin insists it needs the extra time “to locate and produce information that Belkin should have been maintaining on a litigation hold for years,” said Gromov's position statement. Belkin says it has discussed with Gromov the information that will be presented in rolling tranches, but that’s “not the case,” it said. Belkin’s rolling productions in the past “have come in one single dump in the nighttime hours of the last possible day,” it said. Absent any actual detail, Belkin’s time frame for compliance “should be shortened considerably because these discovery requests are coming up on their first anniversary,” it said. The court should ensure that Gromov “has at least a few weeks to review all of the discovery and take the depositions of at least the three Belkin witnesses Gromov has been seeking,” plus those of any new persons who may appear in the documents or interrogatories, it said. Belkin’s position statement said the company is “dismayed” that Gromov’s counsel “has used this status report as an opportunity to make unsupported incendiary accusations that neither reflect the true status of discovery, nor help to advance that process.” Belkin initially presented Gromov’s counsel with a “simple and straightforward” report that would inform the court of the current status of discovery and proposed a schedule for necessary modifications to the scheduling order, as the parties were ordered to do, it said. Belkin “would have much rather filed that type of document,” noting any objections as to the proposed schedule for the court to resolve, it said. But amid “the many misrepresentations made” by Gromov’s counsel in its portions of the joint report, Belkin “is compelled to briefly respond,” it said. Contrary to those misrepresentations, Belkin “has been diligently working to collect and produce the responsive information required” by the court’s Feb. 28 order, it said. That order significantly expanded the scope of the “representative sample” at issue from a proposed 36 devices to 113, it said. In light of that tripling of the scope of the representative sampling discovery, Belkin “intends to make a rolling production of documents and expects to be able to complete its production, and to supplement any interrogatory responses as appropriate, within 45 days,” it said. To the extent that sufficient physical copies of power bank devices within the representative sample can be located in response to Gromov’s first request for production, Belkin “will make such physical devices available for inspection and non-destructive testing, subject to the parties’ agreement on an appropriate protocol,” it said. “Unsatisfied with that proposal” for reasons that aren’t clear, Gromov’s counsel demands that Belkin “complete its production of documents to multiple requests for production as to 113 products and communications about those products and supplement multiple interrogatory responses about those products within the next two weeks,” it said: “This demand is not reasonable.”
U.S. District Judge Michael Shipp for New Jersey in Trenton denied without prejudice SiriusXM’s motion to compel plaintiff Robyn Posternock’s fraud claims to arbitration, said his signed order Thursday (docket 3:23-cv-02680). In reviewing the Rule 56(d) declaration submitted by Posternock's counsel, the court finds that Posternock “has adequately demonstrated that limited discovery is warranted” before a decision is made on SiriusXM’s motion to compel, said the order. The parties are to engage in limited discovery on the issue of arbitrability, to be completed by May 31, it said. The parties are to submit a joint proposed scheduling order by March 29 on the limited issue of arbitrability, it said. After that limited discovery is complete, SiriusXM will be permitted to file a “renewed” motion to compel arbitration, which the court will assess “under a Rule 56 summary judgment standard,” said the order. Posternock's class action is one of several to allege that SiriusXM falsely advertises its music plans at lower prices than it actually charges (see 2308210017).
Christopher Barulich's lawsuit against Home Depot and Google involves “a material part” of the same subject matter as Misael Ambriz v. Google, said Google’s notice of pendency (docket 2:24-cv-01253) of other actions or proceedings Thursday in U.S. District Court for Central California in Los Angeles. Barulich's class action alleges the retailer allows Google to access, record, read and learn the contents of customers’ calls via its Cloud Contact Center (CCAI) in violation of the California Invasion of Privacy Act (CIPA) (see 2402160030). The Ambriz action is pending before U.S. District Judge Rita Lin in the Northern District of California. Google filed a motion to dismiss in Ambriz Jan. 16, and that motion is scheduled for a hearing Tuesday, said the filing. Barulich and Ambriz are both putative class actions alleging Google violated CIPA through CCAI, and in both actions, plaintiffs allege they called the customer service line of a Google customer, Home Depot and Verizon, that used CCAI. The plaintiffs allege they spoke to live customer service representatives while the Google software “provided assistance to the live agent in the background,” said the notice. Plaintiffs said Google through CCAI “eavesdropped” or “surreptitiously listened in and monitored” their conversations. Because the actions are both against Google, relate to the same technology, and involve many of the same facts and the legal issues, Google asked Barulich’s counsel for their position on consolidation with the Ambriz action, but on Tuesday, Barulich’s counsel communicated that they don’t believe consolidation with Ambriz is appropriate, the notice said.
Insurance firm Keenan & Associates discovered a data breach in its computer systems on Aug. 27, but waited six months before it notified and warned customers that their personally identifiable information (PII) was vulnerable, alleged a negligence class action Thursday (docket 8:24-cv-00544) in U.S. District Court for Central California in Santa Ana.
SelectQuote denies the allegations in plaintiff Jay Stannard’s Feb. 12 class action that it violated the Telephone Consumer Protection Act by using prerecorded telemarketing calls to promote its Medicare supplemental insurance services (see 2402130002), said its answer Wednesday (docket 6:24-cv-00312) ) in U.S. District Court for Middle Florida in Orlando. SelectQuote denies that Stannard is entitled to the relief sought, said its answer. “To the extent that any violations are established, any such violations were not intentional and resulted from a bona fide error notwithstanding the maintenance of routine business practices and procedures reasonably adopted and specifically intended to avoid any such error,” it said. SelectQuote has established and implemented “reasonable practices and procedures to effectively prevent a violation of the TCPA,” it said.
Core Home Security contends that it had prior express consent of Victoria Starr-Harris and her putative class members to receive Core’ solicitations on their cellphones, said the security installation and monitoring company’s answer Wednesday (docket 0:24-cv-60250) in U.S. District Court for Southern Florida in Fort Lauderdale to Starr-Harris’ Feb. 14 Telephone Consumer Protection Act class action (see 2402140062). That such consent “was never validly revoked,” said Core. As a matter of “business practice,” Core and its agents “only make sales calls to prospective customers who have provided prior express written consent,” said its answer. The plaintiff and her putative class members “failed to revoke that consent at any time,” it said. It contends that a Core agent named Cory phoned Starr-Harris on her cellphone, and specifically asked her: "Do we have permission to call you here, if we needed to?" She responded: "Correct, correct," according to the company. A recording of that phone call has already been produced to Starr-Harris, said its answer. Core “rigorously and in good faith” complies with all applicable state, federal and local laws and regulations concerning its calling activities, said its answer. Its business practices and procedures, including opt-in mechanisms, “have been independently audited for TCPA compliance,” and those practices and procedures “have been found to be in compliance with the TCPA and applicable regulations,” it said. Maintaining Starr-Harris’ claims as a class action “is inconsistent with the legislative intent of the TCPA,” said Core. Congress intended that claims under the TCPA proceed as individual actions, it said. The TCPA’s legislative history “supports a conclusion that class actions were not intended,” it said. Congress envisioned the statute “as providing a private right of action to consumers receiving the specifically prohibited communications,” it said. In holding that a class action couldn’t proceed under the TCPA, one federal district court “determined that the statutory remedy is designed to provide adequate incentive for an individual plaintiff to bring suit on his own behalf,” it said.