A solar panel company hired an unidentified vendor to make telemarketing calls to numbers on the national do not call registry, in violation of the Telephone Consumer Protection Act and the Texas Business and Commerce Code, alleged a class action Monday (docket 1:24-cv-00066) in U.S. District Court for Western Texas in Austin. Plaintiff Kelly Pinn’s number has been on the DNC registry for more than a year, yet she received multiple automated calls and text messages from Greenstar Power and its vendor as part of a telemarketing campaign between May 4 and Jan. 8, alleged her complaint. A “reasonable seller” whose telemarketers are making calls on its behalf would investigate why they would be calling numbers on the national DNC registry, it said. The Texas resident’s privacy has been violated by the telemarketing calls, and she never gave her consent to receive those calls, it said.
A three-judge panel of the 4th U.S. Circuit Court of Appeals affirmed the district court’s award of summary judgment for Career Counseling over AmeriFactors Financial Group in a Telephone Consumer Protection Act class action and also affirmed the lower court’s denial of Career Counseling’s motion for class certification, said its published opinion Monday (docket 22-1136). Plaintiff Career Counseling alleged that defendant AmeriFactors sent it and thousands of other recipients an unsolicited fax ad, in violation of the TCPA. In denying class certification, the district court determined that Career Counseling failed to satisfy Rule 23’s implicit requirement of “ascertainability,” and the 4th Circuit agreed, said the opinion. That determination derived from the “uncontroverted factual premise” that each of the nearly 59,000 recipients of the AmeriFactors fax was using either a stand-alone fax machine or an online fax service, it said. The court concluded that stand-alone fax machines, but not online fax services, qualify as fax machines under the TCPA, it said. That conclusion “rendered it necessary to be able to identify which of the fax recipients were using stand-alone fax machines and which were using online fax services,” it said. Because the court wasn’t convinced that the stand-alone fax machine users are readily identifiable, “it decided that the ascertainability requirement has not been satisfied,” it said. On AmeriFactors’ cross-appeal challenge of the summary judgment award for Career Counseling, AmeriFactors argues there is “a genuine dispute of material fact” as to whether it is liable as the sender of the fax, it said. “We agree with the district court that there is insufficient evidence of any fraud and deception” to place AmeriFactors’ sender liability in dispute, it said. AmeriFactors thus being liable for sending the fax, “we affirm the court’s award of summary judgment to Career Counseling,” it said.
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.
The U.S. District Court for Middle Florida in Tampa should dismiss with prejudice plaintiff Zuania Vazquez-Padilla’s fraud complaint that alleged Cognizant Technology should be held accountable for a “willfully misleading” job description, said Cognizant's motion to dismiss Monday (docket 8:23-cv-02607).
Comcast hasn’t offered victims of an October data breach at Citrix Systems affecting 35.8 million current and former Xfinity customers financial assistance with credit monitoring, though they will have to monitor their accounts for years to come, said three more lawsuits against the broadband provider filed since Friday. Hackers exploited a vulnerability in Citrix’s systems, affecting Xfinity and other Citrix customers in what has been dubbed the Citrix Bleed.
Full Sail University, a private for-profit college, hired a Florida call center vendor, the Office Gurus, to place unsolicited marketing calls to promote its online course work, “harming thousands of consumers in the process,” alleged plaintiff Kristy Beckwith’s Telephone Consumer Protection Act class action Friday (docket 6:24-cv-00136) in U.S. District Court for Middle Florida in Orlando. Full Sail, specializing in entertainment, media and emerging technologies degrees, is in Winter Park, Florida. Many of the defendants’ TCPA violations “were knowing, willful, and intentional,” and they failed to “maintain procedures reasonably adapted to avoid any such violation,” said the complaint. Beckwith's cellphone number has been listed on the national do not call registry since July 25, yet the Office Gurus phoned the South Dakota resident at least five times on Full Sail’s behalf beginning Aug. 6, and the calls persisted at least through Sept. 2, it said. At no point in time did Beckwith provide the defendants with her express written consent to be contacted, it said. The unsolicited calls caused her “actual harm,” including “invasion of her privacy, aggravation, annoyance, intrusion on seclusion, trespass, and conversion,” it said. The calls also inconvenienced Beckwith “and caused disruption to her daily life,” it said. Beckwith estimates that she spent “numerous hours” investigating the unwanted calls, including trying to learn who the defendants were and how they got her number, said the complaint. The “cumulative effect” of unsolicited calls and voicemails like those attributable to the defendants “poses a real risk of ultimately rendering the phone unusable for other purposes as a result of the phone’s memory being taken up,” it said.
The parties in two authors’ complaints for copyright infringement against Microsoft and OpenAI consent that the plaintiffs will file a consolidated class action complaint by Friday, and that Microsoft and OpenAI will respond to that complaint by Feb. 9, said their joint stipulation Monday (docket 1:23-cv-08292) in U.S. District Court for Southern New York in Manhattan. The parties also agree to submit proposed schedules by Friday for fact discovery, expert discovery and the briefing of summary judgment, said the stipulation. The plaintiffs allege that OpenAI and Microsoft copied the rights owners’ protected works to train their large language models as generative AI tools, and did so without compensating the rights owners or seeking their consent (see 2401030003).
U.S. District Judge Richard Bennett ordered three privacy class actions vs. Washington College to be consolidated in U.S. District Court for Maryland in Baltimore, said his order Thursday (docket 1:23-cv-03258). Collins v. Washington College (docket 1:23-cv-03258), Bresnahan v. Washington College (docket 1:23-cv-03319) and Creasy v. Washington College (docket 1:23-cv-03377) are now consolidated under In re: Washington College Data Security Incident Litigation, it said. Plaintiff Abigail Collins sued the Chestertown, Maryland, college Dec. 1 (see 2312040021) alleging unauthorized third-party cybercriminals gained access to her personally identifiable information (PII). Collins’ information was stored with the college, which informed her of the breach in a Nov. 15 notice, the complaint said. Though Collins was aware a cybersecurity incident occurred in March, she didn't know her PII might be involved until she received the letter, it said. The plaintiffs in the cases were injured by time spent dealing with consequences of the data breach and the risk to future harm they may suffer as a result of their PII being exposed, said the complaints. The consolidated complaint is due in the next 45 days, and the order applies to any subsequently filed putative class action alleging the same or substantially similar allegations, it said.
Inmate Calling Solutions (ICSolutions) charged “junk fees” fraudulently itemized as a “tax” to inmates’ families for calls originating from prisons, alleged a class action Friday (docket 2:24-cv-02027) in U.S. District Court for Kansas in Kansas City.
Numerous class actions challenging the “secret collection and monetization” of cellphone geolocation data have survived motions to dismiss and Norma Egan’s should as well, said the plaintiff's opposition Friday (docket 1:23-cv-11651) in U.S. District Court for Massachusetts in Boston to X-Mode Social's motion to dismiss her first amended privacy complaint.