Plaintiff Shannan Davis voluntarily dismissed with prejudice her Telephone Consumer Protection Act claims against LifeMD because the parties “have resolved their dispute,” said her notice of dismissal Tuesday (docket 8:23-cv-02138) in U.S. District Court for Middle Florida in Tampa. Davis’ Sept. 21 class action had alleged that the telehealth company contributed to the nationwide “barrage” of phone spam by initiating more than 100 illegal text messages to her residential cellphone (see 2309220001).
Financial Risk Mitigation (FRM) maintained customers’ personally identifiable information (PII) on its computer network in a condition “vulnerable to cyberattacks,” alleged a class action Wednesday (docket 2:24-cv-00025) in U.S. District Court for Eastern Louisiana in New Orleans.
The “fundamental flaw” in plaintiff Gabriel Nater’s Oct. 27 class action alleging that he received a prerecorded call from State Farm without his prior express consent, in violation of the Telephone Consumer Protection Act, is that the insurance company didn’t place that call (see 2310300003), said State Farm’s memorandum of law Tuesday (docket 1:23-cv-01408) in U.S. District Court for Central Illinois in Peoria in support of its motion to dismiss Nater’s complaint. Nater’s allegations that State Farm made the call are “entirely conclusory,” said the memorandum. “No facts are alleged to support that assertion,” it added. To the contrary, the alleged facts suggest that the entity making the call was an "unnamed third-party lead generator,” it said. As such, Nater’s attempt to hold State Farm “directly liable” for the call fails, it said. Though a defendant, in some circumstances, “may be held vicariously liable under the TCPA for calls made by some third party on their behalf,” Nater’s complaint “makes no attempt to plead any such vicarious liability claim,” it said. The TCPA prohibition at issue here also applies “only to residential telephone lines, rather than business lines,” it said. Nater’s failure to allege that the called number is on a residential line “provides additional grounds for dismissal,” it said.
La-Z-Boy embarked on a telemarketing campaign to market its products and services by contacting numbers on the national do not call registry in “plain violation” of the Telephone Consumer Protection Act, alleged Little Rock resident Josh Sanford’s class action Tuesday (docket 5:24-cv-10005) in U.S. District Court for Eastern Michigan in Ann Arbor. It’s “simple” for companies to avoid calling numbers listed on the national DNC registry, said Sanford’s complaint. They can “easily and inexpensively” scrub their call lists against the registry’s database, it said. Regulations implementing the TCPA also require companies to maintain internal DNC registries, it said. It has “long been the law” that a seller of goods or services can be liable for TCPA violations even if the seller doesn’t directly place or initiate the calls, it said. Sanford listed his phone number on the national DNC registry in July 2009, said his complaint. He nevertheless received nine La-Z-Boy text message solicitations on five separate dates through Dec. 26, it said. La-Z-Boy, or someone acting on its behalf, violated Sanford’s privacy by making each of the unwanted telemarketing text messages, it said. The text messages “constitute a nuisance as they are annoying and harassing,” it said. Sanford never gave La-Z-Boy “authorization to market to him via text messages,” it said.
U.S. District Judge Julien Neals for New Jersey in Newark denied defendant Plymouth Rock’s motion to dismiss plaintiff Robert Clough’s Telephone Consumer Protection Act class action, said the judge’s signed order Friday (docket 2:21-cv-19343). Clough, a New Hampshire resident, alleges that Plymouth Rock, a New Jersey insurance company, hired a third-party vendor to place telemarketing calls promoting Plymouth Rock’s goods and services to phone numbers listed on the national do not call registry, said the order. Clough alleges receiving four such calls, it said. Plymouth Rock argues that he fails to allege sufficient facts to hold it vicariously liable for the calls placed by the vendor, “based on theories of actual authority, apparent authority, or ratification,” but the court disagrees, said the order. Clough’s allegations also are sufficient to state a claim that the vendor “had actual authority to promote Plymouth Rock’s goods and services through telemarketing calls when it made the alleged unlawful calls,” it said. Clough also sufficiently alleged that he didn’t consent to receive the calls, it said.
The court should reject the first-to-file rule in a privacy case about a September data breach involving a cyberattack on MGM International’s computer systems, said MGM Resorts International’s brief Tuesday (docket 1:23-cv-20419) in U.S. District Court for New Jersey in Camden. It opposes the plaintiffs’ November emergency motion to preclude all other venues and duplicate litigation. U.S. District Judge Joseph Rodriguez for New Jersey reset deadlines in December for the motion, originally set for Tuesday, to Jan. 16 (see 2312120066). The court should deny Saul and Shirley Lassoff’s first-to-file motion, said MGM, calling it a “baseless attempt to seize control of 13 other putative nationwide class actions pending in the District of Nevada," each alleging similar negligence, breach of contract and unjust enrichment claims against MGM arising from the data breach. The first-to-file rule aims to limit duplicate litigation, “not to incentivize first filers,” said the brief. The rule is “inapposite” where it will neither preserve judicial resources nor enhance “the just and efficient management of the litigation,” it said. The cases against MGM in the District of Nevada “are at least as mature,” if not more so, than the Lassoffs’ case, it said. MGM intends to transfer the Lassoffs’ action to Nevada because the federal court in Las Vegas “provides a more convenient forum in which to efficiently coordinate between and manage multiple pending cases with multiple plaintiffs and counsel of record,” the brief said. Given the location of many witnesses and documents in Nevada, “as well as the total lack of any such evidence in New Jersey,” the convenience offered by trial in Nevada “is sufficient to overcome the first-to-file rule,” it said, citing Ricoh v. Honeywell. All the cases vs. MGM “are in their infancy,” and MGM is of the belief that multiple interested parties in Nevada are working to coordinate the litigation and address the issues that inspire the first-to-file rule, said the brief. “Were those efforts interrupted by an injunction -- particularly without any evidence that these Plaintiffs provided proper notice to the plaintiffs in other actions -- it would undoubtedly lead to ancillary litigation and delay,” it said.
Notices from Citrix and Comcast to customers about an Oct. 10 data breach “failed to provide basic details,” said a new class action Wednesday (docket 0:24-cv-60008) in U.S. District Court for Southern Florida in Fort Lauderdale.
Plaintiff Roger Lamb voluntarily dismissed without prejudice his Telephone Consumer Protection Act claims against the Clear Link Insurance Agency and its telemarketing vendor, Boss Leads Live, said Lamb’s notice Friday (docket 1:23-cv-03016) in U.S. District Court for Colorado in Denver. Lamb’s Nov. 15 class action alleged that the insurer hired the vendor to place telemarketing calls to him and his putative class members, despite not having the "requisite consent" to contact those individuals, whose numbers were listed on the national do not call registry.
American HomeSecures (AHS), 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 call recipients, and to numbers listed on the national do not call registry, alleged plaintiff Tiffany Harris’ Telephone Consumer Protection Act class action Friday (docket 3:23-cv-02884) in U.S. District Court for Northern Texas in Dallas. Harris alleges AHS hounded her with multiple telemarketing calls, including three on a single day, though her number had been listed on the national DNC registry since January 2022, said her complaint. As a result of the unlawful calls, Harris “experienced frustration, annoyance, irritation and a sense that her privacy had been invaded,” it said. AHS knew or should have known that it didn’t have prior express written consent to make the calls “and knew or should have known that it was using an artificial or prerecorded voice in violation of the TCPA,” it said.
U.S. District Judge for Southern Florida Roy Altman in Miami signed an order Friday (docket 1:23-cv-23993) dismissing without prejudice a Video Privacy Protection Act class action against Chegg. Plaintiff Michael Foulkes voluntarily dismissed the case against Chegg without prejudice Thursday (see 2312290004). Foulkes alleged in his Oct. 19 complaint that the educational services company tracked his video viewing history while he was on its website and then shared that history with Facebook.