Network Capital Funding is engaged in a scheme to sell mortgage refinance services via cold calls to residential phone numbers listed on the "protected" federal do not call registry, alleged a class action Tuesday (docket 8:24-cv-01335) in U.S. District Court for Central California. Network Capital’s illegal telemarketing calls are prohibited by the Telephone Consumer Protection Act, “which gives victims of junk calls a private right of action to sue for the intrusion on their privacy,” said Paul Sapan’s complaint. Network Capital’s “modus operandi is the same for all the calls in this case,” it said. It either directly or through an agent calls “massive lists of phone numbers” in the U.S. to sell its services without regard to whether those numbers are listed on the national DNC registry, it said. Network Capital or its agents don’t check the DNC registry before making these calls, nor do they engage in any other DNC registry compliance, it said. Network Capital has intentionally violated the TCPA “in a so-far successful attempt to sell financial and/or mortgage packages for years,” it said. Sapan alleges that Network Capital made at least 15 calls to his residential phone number, though that number has been listed continuously on the national DNC registry since December 2007, said the complaint. The Orange County, California resident, never gave Network Capital or any of its agents his express written permission to call him, nor does he have an established business or personal relationship with the company or any of its agents and employees, the complaint said. Past defendants have accused the plaintiff of being one of the “most prolific TCPA litigants in the country,” but Sapan defends himself as a “TCPA Robin Hood” who sues "junk callers" for their illegal calls, “then gives his portion of the recovery to charity” (see 2308310039).
The “hidden spy pixel trackers” that Target embeds in its marketing emails to customers violate Arizona’s Telephone, Utility and Communication Service Records Act, alleged a class action Tuesday (docket 2:24-cv-01048) in U.S. District Court for Arizona.
Anthony Kamel hasn’t provided “sufficient factual evidence” to support the assertion that his cellphone number is used for residential purposes, said Albertsons’ memorandum of points and authorities Thursday (docket 8:24-cv-00270) in U.S. District Court for Central California in Santa Ana in support of its motion to dismiss the plaintiff’s Feb. 8 Telephone Consumer Protection Act class action for failure to state a claim. Kamel alleges that Albertsons, “by means contrary” to the TCPA, contacted his cellphone number multiple times with telemarketing text messages using an automatic telephone dialing system (ATDS) even after he told the supermarket chain to stop contacting him (see 2402090007). But the defendant argues that Kamel’s complaint relies on “conclusory allegations” that his cellphone number is residential, that he’s the cellphone’s account holder and that he’s the regular user of the number, said its memorandum. “Such threadbare allegations lack the necessary factual underpinning to demonstrate the number’s residential use” and defeat Kamel’s residential phone number claim under the TCPA, it said. The plaintiff’s claim is “further undermined” by publicly available information, said the memorandum. The subject number is listed on a publicly accessible website and social media platform as the contact number for Kamel’s jewelry business, “indicating its use for business purposes and inviting public inquiries related to jewelry -- a blatant contradiction that the number is residential,” it said. Kamel’s Telemarketing Sales Rule claim likewise fails because he doesn’t allege he suffered the “requisite amount of damages to state a private right of action,” said the memorandum. The Telemarketing and Consumer Fraud and Abuse Prevention Act, the statute under which the TSR was promulgated, requires that a plaintiff plead at least $50,000 in actual damages to be entitled to a private right of action for violations of the TSR, it said. Kamel’s allegations also “belie an essential element of the claims” that he was contacted using an ATDS as defined under the TCPA, said the memorandum. Under binding 9th Circuit authority, to qualify as an ATDS, equipment “must randomly or sequentially generate telephone numbers to be dialed,” it said. Equipment that "merely dials numbers" obtained in a non-random, non-sequential way, such as when a plaintiff provides his number to a defendant, is not an ATDS, it said. Kamel admits that he received text messages from Albertsons only after he provided his number to an Albertsons cashier, “thus establishing that Albertsons did not contact him using an ATDS,” it said. Even if the court doesn’t dismiss Kamel’s complaint in its entirety, it should dismiss his requests for declaratory and injunctive relief, because he doesn’t allege “any continuing TCPA violations or the threat of future harm or otherwise allege that money damages are an inadequate remedy at law,” it said.
Carvana seeks the Rule 12(b)(6) dismissal of plaintiff Michael Cribier’s Jan. 12 Telephone Consumer Protection Act class action because the complaint fails to state a claim upon which relief can be granted, said its motion Thursday (docket 3:24-cv-00094) ) in U.S. District Court for Southern California in San Diego.
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.
New Jersey's Cable TV Act (CTA) doesn't imply a right of action for municipalities on their own to enforce the law's fee provision, the 3rd U.S. Circuit Court of Appeals said last week. The decision was in response to an appeal by Longport and Irvington, which are seeking to charge cable franchise fees to streamers Netflix and Hulu -- an effort a lower court rejected in 2022 on grounds it violates the CTA (see 2205230028). In a docket 22-2139 opinion, a 3rd Circuit panel said there's no evidence the state legislature intended to create a private right of action for municipalities, as it expressly gave all enforcement authority to the state Board of Public Utilities. Deciding were Judges Michael Fisher, Jane Roth and Patty Shwartz, with Roth penning the decision.
After they were unable to resolve their CapCut videoediting app privacy claims against TikTok and ByteDance in mediation (see 2401120043), the plaintiffs topped off their amended complaint with five additional causes of action, said their complaint Thursday (docket 1:23-cv-04953) in U.S. District Court for Northern Illinois in Chicago.
The amended complaint in a copyright lawsuit alleging Universal Music Group, Sony Music and other labels fraudulently sent takedown notices to YouTube should be dismissed with prejudice for failure to state a claim on which relief can be granted, said defendants UMG, Sony Music and others Friday in a motion to dismiss (docket 8:23-cv-01942) in U.S. District Court for Middle Florida in Tampa.