The U.S. District Court for Middle Pennsylvania in Williamsport should deny defendant Exact Care Pharmacy’s Jan. 29 motion for judgment on the pleadings (see 2401310029), said plaintiff Brenda Everett’s opposition brief Monday (docket 4:23-cv-01649). Everett’s Oct. 4 Telephone Consumer Protection Act class action alleges that Exact Care sends prerecorded messages to individuals’ phone numbers without first obtaining the required express written consent. Exact Care counters that 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.” Everett contends that Exact Care represented to her that she was completing a survey to receive more information, but in fact, Exact Care was attempting for Everett to agree to receive automated calls from Exact Care and its marketing partners, said her opposition brief. FCC regulations make clear that duping consumers into agreeing to receive telemarketing calls “was never lawful,” it said. Exact Care also completely ignores the “express written consent” standard it was required to comply with before engaging in telemarketing, it said.
The sensitive personal information that Kristianne Scott and her class members entrusted to defendant Advantis Global, an IT staffing agency, was compromised and unlawfully accessed in a recent cyberattack and data breach that exposed the records of current and former employees, Scott’s class action alleged Friday (docket 3:24-cv-00795) in U.S. District Court for Northern California in San Francisco.
LiveFree Emergency Response, which sells mobile medical alert systems, placed telemarketing calls to Garrett Traylor and his putative class members using a prerecorded voice, despite not having received prior express written consent to place those calls, alleged Traylor’s Telephone Consumer Protection Act class action Friday (docket 1:24-cv-10329) in U.S. District Court for Massachusetts in Boston. Traylor listed his landline phone number on the national do not call registry in August 2003, yet he received multiple calls pitching him on LiveFree’s Life Beacon device and $39.99 monthly monitoring services, said his complaint. On all the calls, LiveFree spoofed its phone number to make the incoming call appear as though it originated from the plaintiff’s same 617 area code “so that Traylor would be more likely to answer the phone,” it said. Not only did LiveFree “incessantly place telemarketing calls to Traylor,” it did so after he repeatedly asked the company in writing to stop calling him, it said. The calls that LiveFree placed to the Westwood, Massachusetts, resident and his putative class members were “harassing, irritating, invasive and annoying,” said his complaint. “Where LiveFree is the only party that disclosed its identity” in calls that Traylor answered, he alleges the company is “directly liable” for those unlawful calls, it said. But if discovery reveals that some or all of the calls were made by third parties on LiveFree’s behalf, then it's vicariously liable for those calls, the complaint said. LiveFree isn’t permitted under the law “to outsource and contract its way out of liability by directing and benefitting from its agents’ TCPA violations," it said.
Circle K Stores repeatedly sent telemarketing text messages to Emisiah Hughes and her putative class members even after they “expressly requested” that the convenience store chain stop sending them, alleged Hughes’ Telephone Consumer Protection Act class action Friday (docket 1:24-cv-01071) in U.S. District Court for Central Illinois in Peoria. Despite confirming it would no longer send the Peoria resident its telemarketing text messages after she replied “stop” to one of those messages, Circle K continued sending her multiple messages, alleged her complaint. The retailer’s conduct “violated the privacy rights of Hughes and the putative class members, as they were subjected to annoying and harassing text messages,” it said. Circle K’s texts, promoting everything from new lottery games to free offers on Mountain Dew soft drinks, “intruded upon the rights of Hughes and the putative class members to be free from invasion of their interest in seclusion,” it said. Circle K has texted and continues to text people who have requested that the retailer place them on its internal do not call list, said the complaint: “It is reasonable to expect that Circle K will continue to send such text messages absent this lawsuit.”
Rocket Mortgage filed concurrent motions Friday in U.S. District Court for Arizona in Phoenix to dismiss plaintiff Darren MacDonald’s Dec. 11 Telephone Consumer Protection Act class action and to compel his claims to arbitration. 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 Rocket employees have listed cold calling as a core part of their job descriptions in their Linkedin profiles. But MacDonald’s lawsuit “fails at its inception for want of the requisite factual allegations to sustain it,” said the company’s motion to dismiss (docket 2:23-cv-02558). To state his TCPA claims, MacDonald must plead factual allegations that he received two or more telephone solicitation calls from Rocket within the same 12-month period, which “he has failed to do,” it said. The complaint at best offers “only conclusory allegations” that he received one solicitation call from Rocket in June 2022. Recognizing this isn’t enough, MacDonald also pleads that the company sent him a text message the same day with a Rocket employee’s name and phone number, it said. But the text message doesn’t and can’t qualify as a second solicitation call as a matter of law “because it contains no solicitation of any kind,” it said. Rocket’s motion to compel said the plaintiff agreed to arbitrate, not litigate, any claims for violation of the TCPA against Rocket on an individual, not class basis. In “direct breach of that agreement,” MacDonald filed his putative class action lawsuit against the company asserting claims for violation of the TCPA, it said. The court should enforce MacDonald’s agreement and compel his TCPA individual claims to arbitration, it said. The facts relevant to Rocket’s motion to compel “are straightforward,” it said. MacDonald in June 2022 completed an online submission at Rocket’s website to request information, by calls or text messages, about Rocket’s mortgage products, it said. The online submission contained Rocket’s complete terms of use, including the TCPA-related arbitration provision, readily available to MacDonald for review, it said. It “expressly informed” him that by clicking a submission button, he was agreeing to the TCPA-related arbitration and other provisions in the terms of use, it said.
The Temu shopping app and its owner, PDD Holdings, seek to compel the privacy claims of seven plaintiffs to arbitration, said their memorandum of law Friday (docket 1:23-cv-15653) in U.S. District Court for Northern Illinois in Chicago in support of their motion. The lawsuit alleges the Temu app is “purposefully and intentionally loaded” with tools to execute “virulent and dangerous malware and spyware activities” on user devices, and that Temu misled people about how it uses their data (see 2311060041). But the plaintiffs’ claims “belong in arbitration, not in court,” said the memorandum. When the plaintiffs signed up for Temu, “they agreed to individually arbitrate any dispute relating to their use of Temu’s service,” it said. “That agreement is valid,” it said. When the plaintiffs created their Temu accounts, they were presented with a “registration prompt” informing them that, by continuing, they would be agreeing to the etailer’s terms, it said. The prompt “was in a format that multiple federal appeals courts have repeatedly held sufficient to form a valid agreement,” it said. The plaintiffs can’t dispute that they were presented with the prompt and chose to continue past it, and thus they are bound by the terms, it said. Those terms mandate that the plaintiffs’ claims “proceed on an individual basis in arbitration,” it said. “Even if there were any doubt about the arbitration provision’s scope,” the terms delegate resolution of arbitrability issues to the arbitrator, it said. Courts “routinely compel arbitration in these circumstances,” it said. The terms also contain a class action waiver that bars the plaintiffs from pursuing this lawsuit on a class basis, said the memorandum. Plaintiffs agreed that any dispute they bring against Temu must be resolved on an individual basis, it said. The plaintiffs “ignored this requirement when they filed this suit on behalf of a putative class of all Temu users,” it said. Class-action waivers like the one here “are regularly enforced and require that arbitration be compelled on an individual basis,” it said. The plaintiffs can’t “skirt” the arbitration requirement by naming Temu’s parent, PDD Holdings, as a defendant, it said. Though PDD Holdings isn’t a named party to the terms, “settled law holds that a non-signatory may enforce an arbitration agreement where the plaintiff alleges that it has an agency relationship, or engaged in concerted misconduct, with the signatory,” it said. That’s “precisely” what the plaintiffs allege here, it said. They base their claims against PDD Holdings on the "incorrect" premise that it has an agency and “alter ego” relationship with Temu, it said.
Elizabeth Parchinskya first learned Jan. 31 that her private information was exposed in an April 27 data breach of Emmanuel College’s information network, said her class action Thursday (docket 1:24-cv-10314) in U.S. District Court for Massachusetts in Boston. The breach was discovered on Jan. 16, said a notice posted by the Maine Attorney General’s office.
Amazon last month “changed the deal” on its Prime Video offering, charging consumers an additional $2.99 a month for ad-free streaming, alleged plaintiff Wilbert Napoleon's fraud class action Friday (docket 2:24-cv-00186) in U.S. District Court for Western Washington in Seattle.
Albertsons, “by means contrary” to the Telephone Consumer Protection Act, has contacted Anthony Kamel’s cellphone number multiple times using an autodialer even after Kamel told the supermarket chain to stop contacting him, alleged Kamel’s class action Thursday (docket 8:24-cv-00270) in U.S. District Court for Central California in Santa Ana. Albertsons, “during the time frame relevant” to Kamel’s complaint, “has sent out thousands of unlawful and unwanted text messages,” trying to sell its goods and services in violation of the TCPA, said the complaint. By “effectuating” these unauthorized text message calls, Albertson’s has caused consumers "actual harm," it said. They were subjected to the aggravation “that necessarily accompanies mobile spam,” but also because consumers frequently have to pay their cellphone service providers for the receipt of such spam, it said. Those spam messages diminish cellphone battery life, waste data storage capacity and are an intrusion upon seclusion, it said. Albertsons obtained Kamel’s phone number when he was paying for goods at an Albertsons store, and a cashier asked the California resident for his number to see if he was a rewards member, said the complaint. Kamel didn’t sign any documents or contracts, nor review any prompt screens or other disclosures on the Albertsons point-of-sale system, it said. He also wasn’t asked to verbally confirm agreement to any terms or conditions, or to otherwise consent to be contacted on his cellphone, nor did Kamel “verbally or otherwise offer any such confirmation or consent,” it said. Kamel estimates Albertsons sent him a total of seven telemarketing text messages after receiving his initial opt-out request Dec. 5, said the complaint. The company’s failure to honor opt-out requests demonstrates that it doesn’t maintain written policies and procedures regarding its text messaging marketing, not does it provide training to its telemarketing employees or maintain a standalone do-not-call list, it said. Albertson's conduct constitutes “abusive telemarketing,” the complaint said.
U.S. District Judge Brantley Starr for Northern Texas in Dallas denied Tiffany Harris' Feb. 5 motion to proceed with her Telephone Consumer Protection Act class action without the requirement of local counsel, said a text-only docket entry Thursday (docket 3:23-cv-02884). Starr ordered Harris to appoint local counsel under Local Rule 83.10 by March 7. Harris’ Dec. 29 complaint alleges that American HomeSecures, in an “overzealous attempt” to market its smart home security services, willfully or knowingly made, and continues to make, unsolicited telemarketing phone calls to residential phones using an artificial or prerecorded message without the prior express written consent of the calls’ recipients, and to numbers listed on the national do not call registry (see 2401010002). The plaintiff’s motion said her current counsel of record, Amy Ginsburg of the Kazerouni Law Group in Costa Mesa, California, who is admitted to practice in Texas, “has extensive experience handling TCPA matters” and has handled “countless cases” before the federal courts. Her rationale for seeking leave to proceed without local counsel was “to keep fees and costs low, and aid settlement of this matter,” said her motion.