TCPA Complaints

September 2017


Text Spam To Reassigned Numbers

Lindenbaum v. Lyft
Class complaint – Lyft allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile, a number on the National Do Not Call registry. Plaintiff claimed the texts relating to Lyft services constituted marketing, and she never provided her Prior Express Written Consent for such texts. Plaintiff claimed the texts did not include opt-out instructions as require by CTIA/MMA guidelines.
[N.D. OH; 1:17-cv-01991]
jbho: hmmm. Seems like a suit born of the one-call safer harbor rule. Nowhere in the 31 page complaint does it say plaintiff ever texted STOP. Not even in the screenshots attached to the complaint.
Lindenbaum-sample-texts.pdf
Also conspicuously absent is whether plaintiff was a Lyft customer. This one could get interesting. Stay tuned…

 

Another Spam Text Class Action

La Force v. GoSmith
Class complaint – GoSmith allegedly sent unsolicited (ATDS) telemarketing texts to plaintiff’s mobile. Plaintiff claimed he never signed up for GoSmith services or provided his number to GoSmith. Plaintiff further alleged GoSmith implemented a convoluted opt-out, with multiple reply options for differing levels of opt-outs:
• Text 3 if not interested
• Text 4 if wrong trade type
• Text 5 if wrong service area
• Text 6 if you’re busy
• Text 9 to stop (but only paused texts for 7 days)
Finally, plaintiff claimed when he texted ‘STOP,’ he received a text asking why he was not interested.
[N.D. CA; 4:17-cv-05101]
jbho: make sure to offer a simple opt-out honor opt-out requests. MMA/CTIA guidelines are a good starting point.

Also interesting is that the complaint goes into detail about a web signup process that uses a pre-ticked checkbox to get consent:

“Below (the) sign-up bar in small print is a check box next to ‘I have read and agree to the terms & privacy policy. Msg & data rates may apply.’ ‘Terms’, ‘Privacy Policy’, and ‘Msg’ are hyperlinks.”

Looks like a strong argument that no PEWC is being obtained. HOWEVER, plaintiff claimed he never engaged that process, so not sure it’s relevant. Doesn’t seem he would be adequate to represent any ‘sign-up’ class?

August 2017

Recall Notice Is Text Spam?

Gillmore v. Lokey Automotive
Class complaint – Lokey allegedly sent an unsolicited (ATDS) text to plaintiff’s mobile. The text alerted plaintiff of a recall on her car, a recall initially issued in 2007, that was not covered under her warranty. Plaintiff claimed she had no business relationship with Lokey, and never provided Lokey her number. Plaintiff claimed since the text related to repairs she would have to pay for, the text was unsolicited marketing.
[M.D. FL; 8:17-cv-02064]
jbho: I’ve not seen any rulings on whether recall notices constitute an ’emergency’ under the TCPA. The closest I’ve seen to a definition of ’emergency’ came in the FCC Blackboard ruling where the Commission indicated messages related to weather closures, fire, dangerous persons, & health risks (e.g., toxic spills) constituted ’emergencies’ exempt from consent – at least for schools.

Although, based on the screenshot included in the complaint, it appears to be a live interaction, with an obfuscated opt-out request. What do you think?
lokey
Another reason to make sure you can identify ‘STOP’ anywhere in text replies.

A DNC Text Spam Class Action

Bugbee v. Spanish Broadcasting
Class complaint – Spanish Broadcasting allegedly sent unsolicited texts to plaintiff’s mobile, a number on the National Do Not Call list. Plaintiff claimed he had no business relationship with Spanish Broadcasting, and never request its services.
[N.D. Ill; 1:17-cv-06164]
jbho: intersting that the complaint seems to focus more on DNC violations than ATDS texts. Although, the class is defined broadly enough to include both. A reminder that plaintiffs can double-dip for violations of §227(b) & §227(c).

Note plaintiff is represented by the same firm as in Naiman v. Zoek below, which also focused on DNC violations.

Another Double-Dip Class Action

Naiman v. Zoek
Class complaint – Zoek allegedly made unsolicited autodialed telemarketing calls to plaintiff’s mobile numbers, numbers that were on the National Do Not Call registry. Plaintiff claimed calls continued despite requests they cease – amounting to more than one unsolicited call in a twelve month period. Plaintiff seeks to represent an ATDS class and a DNC class.
[N.D. CA; 3:17-cv-04839]
jbho: yet another reminder that plaintiffs can double-dip for violations of §227(b) & §227(c).

Note plaintiff is represented by the same firm as in Bugbee v. Spanish Broadcasting above, which focused on DNC violations (rather than Robocall violations).

Another Robocall Class Action

Gardner v. Centurylink
Class complaint – Century Link allegedly made autodialed and prerecorded telemarketing calls to plaintiff’s mobile. Plaintiff claimed calls continued despite requests they cease. Plaintiff claimed he had no business relationship with Century Link, and never consented to the calls.
[M.D. FL; 8:17-cv-02084]
jbho: Consent! Consent! Consent!


TCPA Class Based Solely On DNC Violations

Wetterer v. Roomstogo.com
Class complaint – Rooms To Go allegedly made unsolicited telemarketing calls to plaintiff’s landline, a number on the national Do Not Call registry, and calls continued despite asking they stop. Plaintiff claimed he had no business relationship with Rooms To Go, and never consented to the calls.

Plaintiff seeks to represent a class of consumers registered on the national DNC registry who received more than one unsolicited telemarketing call in a 12 month period.
[M.D. FL; 8:17-cv-01900]
jbho: interesting to see a case that pleads violations of 47 USC §227(c) only. A reminder that the TCPA does cover landline calls and manual dialed calls.

The complaint also goes into detail as why the alleged injuries are concrete. Plaintiff cites the recent decision in Susinno v. Work Out World [3rd. Circ 16-3277(Orig: D N.J.; 3-15-cv-05881)] https://jbho.blog/north-america/united-states/tcpa/#Susinno-v-Work-Out-World where the court found one call is sufficient to cause concrete injury.

Although an ATDS isn’t relevant to the claims, plaintiff does mention use of an autodialer as a means to contact a large number of consumers (thus justifying the class claims?)


Lilliputian Disclosures Do Not Make For Valid PEWC

Kim v. A Place For Mom
Class complaint – A Place For Mom allegedly made autodialed lead generation calls to plaintiff’s mobile. Plaintiff claimed that although he knowingly provided his mobile number on the A Place For Mom website, A Place For Mom failed to clearly and conspicuously disclose he would be called. Autodialer disclosures were nowhere near the phone number entry field, and located at the bottom of the page, in a “barely legible font.” Thus, Plaintiff claimed he did not provide his Prior Express Written Consent to be contacted.
[N.D. Ill; 1:17-cv-05716]
jbho: although the disclosure arguably could meet the requirements of 47 CFR 64.1200(f)(8), plaintiff seeks to build his case on whether the disclosure was ‘clear and conspicuous.’ What do you think?
aplaceformom

Another Text Spam Class Action

Hilton v. Expand Incorporated (d/b/a Gigats)
Class complaint – Gigats allegedly sent unsolicited (ATDS) texts to plaintiffs’ mobiles. The texts allegedly advertised employment opportunities, and were sent from at least four different phone numbers. Plaintiff Hilton claimed she had no previous relationship with the sender, and her number was on the national DNC list. Plaintiff Metzger claimed he had no previous relationship with the sender, and texts continued despite replying STOP.
[M.D. FL; 6:17-cv-01427]
jbho: this complaint covers all the bases. No Consent, failure to honor opt-outs, and DNC claims (47 USC §227(c)).

July 2017

Another Double-Dip Class Action

Hardin v. Cash Fund
Class complaint – Cash Fund allegedly made unsolicited, autodialed telemarketing calls to plaintiff’s mobile, a number on the National Do Not Call list. Plaintiff alleged calls were made from at least three different numbers.
[C.D. CA; 2:17-cv-04846]
jbho: yet another reminder that plaintiffs can double-dip for violations of §227(b) & §227(c)

Wrong Number Text Class?

Giacomaro v. Uber
Class complaint – Uber allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile. Plaintiff claimed she never signed anything or agreed to receive texts from Uber. Plaintiff implied she received the texts in error since “(m)any of the telephone numbers … are inaccurate, resulting in defendant routinely sending unsolicited text messages to individuals like Plaintiff.”
[E.D. N.Y.; 2:17-cv-03923]
jbho: a reminder of the importance of data quality.

Note: The complaint does not state whether plaintiff ever downloaded the Uber app or otherwise interacted with Uber.

Another Telemarketing Class Action

Nguyen v. Marriott
Class complaint – Marriott allegedly made at least one prerecorded telemarketing call to plaintiff’s mobile. Plaintiff claimed she never consented to “any kind of marketing calls” from Marriott.

UPDATE: 3Aug2017 – The case was voluntary dismissed without explanation (Doc #8)

[S.D. N.Y.; 1:17-cv-04983]
jbho: Consent! Consent! Consent!

Yet Another Telemarketing Class Action

Gallion v. Charter Communications
Class complaint – Charter allegedly made an unsolicited, autodialed, prerecorded, telemarketing call to plaintiff’s mobile. Plaintiff claimed he was never a Charter customer, and never provided his number to Charter for any purpose.
[C.D. CA; 5:17-cv-01361]
jbho: Consent! Consent! Consent!

June 2017


Class Claims B2B Calls Made To Personal Number

Cervantes v. UPS
Class complaint – UPS, through its agent, allegedly made autodialed debt collection calls to plaintiff’s mobile, and continued calling despite her requests calls cease. Plaintiff claims she provided her personal number on a business account she subsequently closed, a business account that was wrongly referred to collections. Plaintiff claimed any consent that may have existed was effectively revoked when she requested calls cease.
[N.D. GA; 1:17-cv-02410]
jbho: I wonder if UPS thought it was reaching a business line? A reminder to scrub lists for mobile numbers, since the TCPA does cover B2B calls if they are made to a mobile.


Call Center Allegedly Made Robocalls Using Spoofed Numbers

Cahill v. GC Services
Class complaint – GC Services allegedly made some 39 autodialed and prerecorded message calls to plaintiff’s mobile. Plaintiff claimed she never provider her number to GC, or otherwise consented to the calls. Plaintiff further alleged that although calls were made from Houston, Texas, the inbound calls displayed a (local) San Diego number.
[S.D. CA; 3:17-cv-01308]
jbho: there is no private right of action for violations of the Truth in Caller ID Act (TCIA), but it’s usually tacked on to regulatory enforcements to round out complaints. Probably being used in an attempt to demonstrate willfulness here.

Number spoofing isn’t in-and-of-itself a TCIA violation, and ‘nonharmful spoofing’ – spoofing done without “intent to defraud, cause harm, or wrongfully obtain anything of value” has generally been permitted. However, you better have a legitimate business case for making such changes.

BTW: in you are interested, CallerID spoofing services are the subject of a pending petition before the FCC, on whether companies that ‘aid and abet’ TCPA violations through Caller ID spoofing should be vicariously liable for such calls. AFAIK, a ruling hasn’t yet been handed down. 


Auto Financing Company Accused Of Unsolicited Autodialed Telemarketing Calls

Bousquet v. Fleet Financial
Class complaint – Fleet allegedly made autodialed telemarketing calls to plaintiff’s mobile, encouraging her to refinance her vehicle. Plaintiff claimed she never expressed interest in refinancing her vehicle, and never provided any written authorization to Fleet for the calls.
[D. CO; 1:17-cv-01584]
jbho: best to skip the cold calls and first get consent?


Class Filed For B2B Telemarketing Calls

Abante Rooter & Plumbing v. Sears
Class complaint – Sears allegedly made unsolicited autodialed telemarketing calls to plaintiff’s mobile. Plaintiff claimed he had no relationship, nor any previous contact, with Sears. Plaintiff further alleged calls continued despite verbal and email requests the calls cease.
[N.D. CA; 4:17-cv-03312]
jbho: Remember, the TCPA applies to B2B calls as well.

Another complaint that includes arguments for why plaintiff has standing under Spokeo, with two pages of the complaint dedicated to that premise.


Another Spam-Viting Class Action

GatherApp-ChrisPratt

Foley v. GatherApp
Class complaint – GatherApp allegedly sent unsolicited (ATDS) marketing texts to plaintiffs’ mobiles. Two plaintiffs allegedly received the same text:

You have been invited to gather with 3 of your friends – gthr.me/dl
Reply HELP for help, STOP to stop more invites from friends

Both were allegedly sent from the same Short Code.

A third plaintiff received two texts. The first an image of an excited Chris Pratt followed by the message:

You have been invited! Your friends want to hang 🙂 Check it out! – goo.gl/49YISk
Reply HELP for help, STOP to stop more invites from friends

Both were allegedly sent from a spoofed 10-digit number (plaintiff claimed when he dialed the number, it was out of service).

Plaintiffs claimed they never consented to the texts, and their numbers were acquired through unauthorized access to third parties’ phone contact lists.
[N.D. CA; 4:17-cv-03132]
jbho: another case that will test who is the caller in a forward-to-a-friend scenario. Ultimately, it will boil down to the extent of user interaction in the sending. Remember Poshmark was recently granted summary judgement [Reichman-v-Poshmark (S.D. CA; 3:16-cv-02359)] for an app that required multiple clicks before invites could be sent.

Class Action Claims For Unsolicited Texts Sent To Scraped Numbers

McWilliams v. Business Texter
Class complaint – Business Texter allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile. The texts were allegedly designed to mimic manual, human sent texts, but were actually initiated by an Artificial Intelligence SMS Chat Bot. Plaintiff claimed he never provided his number to Business Texter, a number he believes Business Texter ‘scraped’ from Zillow.
[S.D. FL; 0:17-cv-61158]
jbho: I’ve not yet seen a TCPA case deal with a ChatBot. A new chapter in ATDS analysis? Stay tuned…

May 2017


Spam-Viting Allegations In Vogue?

Aloise v. Everalbum
Ruppe v. GatherApp
Class complaints – Defendants allegedly sent unsolicited (ATDS) marketing texts to plaintiffs’ mobiles. Each allegedly sent the texts through forward-to-a-friend features in their mobile apps that would ask users to share the app, and then execute address book blasts. Plaintiffs alleged app users had no control over the content or timing of the texts, and were never shown samples of the texts sent.
[Aloise v. Everalbum (M.D. FL; 6:17-cv-00837)]
[Ruppe v. GatherApp (Cook Co. Cir. CT.; 2017-CH-07052)]
jbho: plaintiffs may face uphill battles here. Based on the complaint, both apps appears to mirror processes for which Poshmark was recently granted summary judgement [Reichman-v-Poshmark (S.D. CA; 3:16-cv-02359)]. Will the 7th & 11th follow suit? 

For complaints filed almost two thousand kilometers apart by two separate firms, there are a lot of similarities in the filings. Interesting.


Another Debt Collection Call Class Action

Germond v. Law Offices of Joel Cardis
Class complaint – Cardis allegedly made autodialed, prerecorded debt collection calls to plaintiff’s mobile, and allegedly continued calling despite plaintiff’s requests calls cease. Calls were allegedly made 2-3 times per day, 3-5 times per week. Plaintiff claims she was never a customer of Cardis. Claims were filed under the TCPA and FDCPA.
[S.D. FL; 2:17-cv-14152]
jbho: could be a wrong number case, otherwise plaintiff would likely have filed claims under the FCCPA as well?


Another RoboCall Class Action

Thompson v. AT&T
Class complaint – AT&T allegedly made autodialed, prerecorded message calls to plaintiff’s mobile without consent, and allegedly continued calling despite his request calls cease. The nature of the calls was not disclosed in the complaint.
[N.D. Ill; 1:17-cv-03607]
jbho: note the complaint specifically calls out the “Aspect Unified IP dialing system” as an ATDS. One to add to the ‘is’ / ‘is not’ / ‘not yet’ an ATDS list?


Another Wrong Number Class Action

Ward v. Flagship Credit
Class complaint – Flagship allegedly made autodialed, prerecorded message calls to plaintiff’s mobile, and allegedly continued calling despite being informed it had reached a wrong number.
[E.D. PA; 2:17-cv-02069]
jbho: Once more, when someone says stop calling, STOP CALLING! And in addition to opt-outs, you might want to scrub your call lists against reassigned numbers as well.

Another Wrong Number Class Action

Burdier v. National Grid
Class complaint – National Grid allegedly made autodialed, prerecorded message calls to plaintiff’s mobile. Calls allegedly continued despite informing National Grid it had reached a wrong number, and asking that calls cease. Plaintiff claimed he was not a National Grid customer and never gave National Grid his number.
[S.D. N.Y.; 1:17-cv-03217]
jbho: When someone says stop calling, STOP CALLING! And in addition to opt-outs, you might want to scrub your call lists against reassigned numbers as well.

One Call Class Action

Melingonis v. Direct Merchants (Flash Advance)
Flash Advance allegedly made an unsolicited autodialed, prerecorded telemarketing call to plaintiff’s mobile, a number on the national Do Not Call list. Plaintiff claimed he was not a Flash customer, and never provided Flash his number.
[S.D. CA; 3:17-cv-00826]
jbho: despite the initial call being unsolicited, plaintiff did ask to be called back (ostensibly to confirm the callers identify). Wonder if that will have any bearing going forward.

Also worth noting – the complaint contains a detailed analysis of why plaintiff believes he has standing (under Spokeo) for the one call.

Finally, surprisingly, no cause of action was included under 47 USC 227(c).

April 2017


Another Pair Of Carbon Copy Class Actions

Class complaints – defendants allegedly made unsolicited robocalls to plaintiff’s mobile, a number on the national Do Not Call list.
• Gallup allegedly made at least one ATDS call.
• Marriott allegedly made some eight prerecorded message calls. Plaintiff claimed the automated-interactive opt-out was inaccessible or did not work.
Hartley v. Gallup [S.D. CA; 3:17-cv-00768]
Hartley v. Marriott [S.D. CA; 3:17-cv-00770]
jbho: although the circumstances of the calls differ, the rest of the complaints are pretty much the same. Both were filed on 17 April 2017 by the same law firms.

Surprisingly, no cause of action was included under 47 USC 227(c). Maybe they forgot to add to the Marriott complaint when copying from the Gallup complaint?

All In The Family

Clark v. Macy’s
Class complaint – Macy’s allegedly made some 50 autodialed debt collection calls to plaintiff’s mobile; calls that concerned and alleged debt owed by her daughter. Calls allegedly continued despite informing Macy’s it had reached a wrong number and asking that calls cease.
[M.D. FL; 6:17-cv-00692]
jbho: there may be some extenuating circumstances here, but once you’re informed of a wrong number or asked to stop calling, you really should pull that number from the dialer.

Since the calls weren’t to the debtor, it appears no FCCPA claims were filed.

Yet Another Spam Fax Class

Camp Drug v. Emily (DDP Medical Supply)
Class complaint – Emily allegedly sent unsolicited faxes advertising its medical supply products, with opt-out notices that did not comply with statutory requirements.
[S.D. Ill.; 3:17-cv-00397]
jbho: I was almost ready to stop writing up fax cases, and then bam! Another class action. Shocking.

Cold Calling Class Complaint Against Newspapers

VanDrunen v. The Pisa Group
Class complaint – Pisa, on behalf of its partners, allegedly made unsolicited autodialed telemarketing calls to plaintiff’s mobile. Calls allegedly continued despite requests they cease. Plaintiff seeks to represent a class that received similar calls from Pisa seeking subscribers to the more than 100 newspapers it represented. Calls were allegedly made to consumers who did not consent and had no pre-existing business relationship.
[E.D. MO; 4:17-cv-01238]
jbho: maybe better to skip the cold calling and get consent?

Or, for newspapers in the internet age, since nobody reads paper copies anymore, maybe your marketing dollars could be better spent on programmatic campaigns?

Interestingly, there were no DNC claims (47USC§227(c)) in the complaint.

Motel Files Another (Wrong Number?) Junk Fax Suit

Gorss Motels Inc. v. Sprint
Class complaint – Sprint allegedly sent unsolicited faxes, without opt-out notices, to Gorss properties. The faxes advertised free devices and preferred mobile plan rates for Wyndham affiliates.
[D. Conn; 3:17-cv-00546]
jbho: compare with the Land’s End complaint (see below). It appears the faxes here were also directed to Wyhdham. If they were, and Wydham had consented, an opt-out notice would not have been required

A reminder that in addition to opt-outs & reassigned numbers, you might want to scrub your call lists against directories of TCPA plaintiffs.

No End To Faxes In Sight?

Thomas v. iRemedy
Class complaint – iRemedy allegedly sent unsolicited faxes marketing it medical products and services. The faxes allegedly were sent without consent, where no previous relationship existed, and failed to include compliant opt-out notices.
[S.D. FL; 2:17-cv-14120]
jbho: wow – 2017, and there seems to be no end to these fax cases.

March 2017

All You Had To Do Was Text STOP

Viggiano v. Kohl’s
Class complaint – Plaintiff joined, then withdrew from a Kohl’s text program. Plaintiff alleged the texts continued after she attempted to opt-out. Her attempts included sending the following via text message:
I’ve changed my mind and don’t want to receive these anymore.
Please do not send any further messages.
I don’t want these messages anymore. This is your last warning!
Plaintiff alleged Kohl’s told her the only way to opt-out was to text ‘STOP.’

On motion to dismiss, Kohl’s stated that after each grandiloquent opt-out request, its system automatically responded that the request was not understood, and to reply STOP to opt-out. Kohl’s stated the replies read:

Sorry we don’t understand the request! Text SAVE to join mobile alerts. Msg&DataRatesMayApply. Receive 5-7 msgs/mon. Reply HELP for help, STOP to cancel.”

Kohl’s stated opt-out instructions were also included in Kohl’s short form and long form text program notices.

Hearings on the motion are set for 1May2017.
[D. N.J.; 3:17-cv-00243]
jbho: another obfuscated opt-out case from the Jersey shore. It will be interesting to see if Kohl’s motion will be granted. Stay Tuned…

The motion to dismiss (Doc #8) contains examples of materials used by Kohl’s to promote and manage its text message programs. Looks pretty buttoned up to me. I’d say these are good examples to keep handy – especially if Kohl’s can prevail on its motion.

Make Sure Someone Is Getting Consent

Tamaddon-Dallal v. FRS
Class complaint – FRS, and its partner MNS, allegedly sent an unsolicited (ATDS) text jointly promoting a high-speed ferry service from Miami to nightlife events in the Bahamas.
[S.D. FL; 1:17-cv-20979]
jbho: in joint marketing campaigns, make sure the responsibility for getting consent is assigned, as well as keeping those records secured.

Also – wow, a 19 page complaint for a single text.

Another Telemarketing Class Action

Frank v. BMOCorp
Class complaint – BMO allegedly made unsolicited autodialed calls selling aftermarket third party auto warranties to plaintiff’s mobile, a number on the national Do Not Call list. Plaintiff claimed he had no relationship with BMO and never consented to the calls.
[E.D. MO; 4:17-cv-00870]
jbho: surprisingly no claims were filed under §227(c). Perhaps plaintiff only received the one call mentioned in the complaint?

February 2017

Roy & Sergei Hit Retailers With Multiple Class Actions

Class complaints – Gap and JC Penney, in two separate actions, allegedly made autodialed, prerecorded debt collection calls to plaintiff’s mobile about another person’s debt. Calls allegedly continued despite informing Gap and JC Penney they had reached a wrong number.
[Campbell v. Gap: N.D. N.Y.; 1:17-cv-00081]
[Campbell v. JC Penney : N.D. N.Y.; 1:17-cv-00080]
jbho: for fun, print out these complaints, overlay the pages and hold them in front of a bright light.

Hard not to be fan of Mr. Lemberg. If you haven’t seen it, checkout his app: http://www.blockcallsgetcash.com/

How To Obfuscate A TCPA Opt-Out

Rando v. Edible Arrangements
Class Complaint – Plaintiff joined, then withdrew from an Edible Arrangements (EA) text program. Plaintiff alleged the texts continued after he attempted to opt-out. His attempts included sending the following via text message:
• “Take my contact info off please
• “I want to confirm that I have been removed off your contacts
• “I asked to be removed from this service a few times. Stop the messages.
• “Again I want to stop this service thank you.”
Plainitff alleged EA told him the only way to opt-out was to text “STOP.”
[D. N.J.; 1:17-cv-00701]
jbho: it seems pretty clear plaintiff here was gaming EA. Nonetheless, a reminder you should consider building some intelligence into your opt-out processing to recognize such unconventional opt-out requests – at least until the FCC or Congress build some structure around revocation.

Wrong Number  Text Spam Class Action?

Amodeo v. GrubHub
Class complaint – GrubHub allegeldy sent unsolicited (ATDS) texts to plaintiff’s mobile for restaurant orders he did not place. The texts read

Hey, this is Grubhub! [RESTAURANT NAME] is Making your order right now. If we had to guess how soon you’ll be eating, we would guess pretty soon!

Plaintiff claims texts continued despite responding “STOP” and “STOPALL”.
[N.D. Ill; 1:17-cv-01284]
jbho: This is a tricky one. Ostensibly, you could consider each unique GrubHub order an individual consent to the corresponding notification. But if there is a wrong number in the system, all bets are off.

Also, this one sounds similar to the scenario in Duguid v. Facebook (N.D. CA; 3:15-cv-00985) which was recently dismissed with prejudiced for failure to allege an ATDS was used. However, the complaint here goes to pains to provide snippets of computer code to allege that the GrubHub system could be easily modified if “capacity” were not already present. One to watch.

Don’t Send A Text Asking For Consent To Text

Sauberman v. Avis
Class complaint – Avis allegedly sent an (ATDS) text asking plaintiff to enroll in a text alert program. The text read:

Avis: Reply ”YES” to receive text alerts for your rental. 4 msg per rental. Text STOP to end, HELP for help + T&C’s. Std. Msg&Data rates may apply.

[D. N.J.; 2:17-cv-00756]
jbho: might a ‘look forward’ analysis be needed here to determine if the ‘program’ consisted of marketing or informational texts? If all the texts are relationship/transactional, there’s likely a good argument plaintiff consented by knowingly providing his number (assuming the Cunningham/Moskowitz petition doesn’t change anything).

Este SMS No Es Bueno…

Gadelhak v. AT&T
Class complaint – AT&T allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile a number on the national Do Not Call (DNC) list. The texts appeared to be the beginning of a customer satisfaction survey about a recent service call and read:

Gracias por llamar a AT&T. En breve recibira unos mensajes para opinar acerca de su llamada. Cuan probable recomendaria los sericios de AT&T a un amigo o familiar en una escala del 10 al 1?

Plaintiff claimed he was not an AT&T customer, had no relationship with AT&T, and did not speak spanish.
[N.D. Ill; 1:17-cv-01559]
jbho: as presented in the complaint, it looks like the messages were intended for another recipient. Could be an honest mistake – case of a reassigned number, incorrectly entered number, etc. According to the complaint, plaintiff entered his number on the DNC list in May 2014, and the texts were received July 2016. Although, if the messages are operational, DNC status shouldn’t be relevant. Stay tuned…

Hospital Hit With TCPA Action

Crooks v. Rady Children’s Hospital
Class complaint – Rady allegedly made autodialed, prerecorded debt collection calls to plaintiffs’ mobiles. Calls apparently ceased after Rady was informed of attorney representation and receiving written cease requests, but allegedly resumed months or weeks later.
[S.D. CA; 3:17-cv-00246]
jbho: if the later calls we’re manually dialed, that shouldn’t be a TCPA violation, but could potentially be FDCPA or Rosethal Act violations. Here it appears only TCPA claims (the most lucrative) were filed.

Wrong Number? Debt Collection Case

Labreau v. Synergetic
Complaint – Synergetic allegedly made some 50 autodialed, prerecorded debt collection calls to plaintiff’s mobile about another person’s debt. Calls allegedly continued despite informing Synergetic it has reached a wrong number. Calls allegedly were made several times a day on back to back days. Plaintiff alleges violations of the TCPA, FDCPA, and FCCPA.
[S.D. FL; 1:17-cv-20372]
jbho: The trifecta of cash claims. No mention of a class at this point. Although if it’s a wrong number, I don’t think the FCCPA is applicable.

Wrong Number? Robocall Class

Pickett v. Capital One
Class complaint – Capital One allegedly made autodailed, prerecorded message calls to plaintiff’s mobile. Calls allegedly continued despite informing Capital One it had reached a wrong number. Plaintiff claimed he recently acquired the number, was never a customer of Captial One, never gave his number to Capital One, and never consented to the calls.
[M.D. FL; 6:17-cv-00260>]
jbho: we really need industry to provide a mechanism to scrub reassigned numbers.

Can Debt Calls Rely On Proxy Consent?

Ivy v. Central Florida Regional Hospital (CFRH)
Class complaint – CFHR, and its agent, allegedly made some 220 autodailed and prerecorded debt collection calls to plaintiff’s mobile phones, despite plaintiff’s request calls cease. Plaintiff claimed he did not provide his numbers to CFRH as he was incapacitated at the time of his admission, and claims .
[M.D. FL; 6:17-cv-221]
jbho: it will be interesting to see who provided the number(s). In the famous Mais v. Gulf Coast Collections [11th Circ.; 13-14008 (Orig: S.D. FL; 0:11-cv-61936)], the appellate court ruled a wife listing a husband’s mobile on a hospital admissions form constituted the husband’s prior express consent.

Another Double-Dip Robocall Action

Seavey v. AIG
Class complaint – AIG allegedly made unsolicited autodialed telemarketing calls to plaintiff’ mobile, a number on the National Do Not Call list. AIG allegedly called several times per day, and continued calling despite requests to stop. Plaintiff claimed the calls were meant for someone else, and she never had a relationship with AIG.
[M.D. FL; 8:17-cv-00387>]
jbho: maybe they can get another bailout?

Another Double-Dip Robocall Class Action

Gillis v. Sprint
Class complaint – Sprint allegedly made autodialed, prerecorded telemarketing calls to plaintiff’s mobile, a number on the National Do Not Call list.
[D. Mass; 1:17-cv-10305]
jbho: the complaint does not specify whether plaintiff was a Sprint customer or called at Sprint provisioned number. It does allege the calls were meant to solicit new customers, and plaintiff was charged for the calls. So it will be interesting to see if any carrier consent exemptions apply.

Another Robocall Class Action

Ewing v. Charter Communications
Class complaint – Charter and its agents allegedly made unsolicited prerecorded telemarketing calls to plaintiff’s landline & mobile phones. Calls allegedly continued despite informing callers, orally & via email, to cease. Plaintiff claimed callers failed to provide him with their internal Do No Call policy on demand, and some calls occurred prior to 8:00am.
[S.D. CA; 3:17-cv-00222]
jbho: well written, comprehensive complaint (if you like that sort of thing). Worth a look to know what to expect when you’re robocalling.

Class For Robocalls To Debtor’s Daughter

Adame v. Honda
Class complaint – Honda allegedly made autodialed, prerecorded debt collection calls to plaintiff’s mobile about a debt allegedly owed by her father. Plaintiff claims her number was not listed on the loan application, and calls continued (to her and her father) despite requests they cease.
[Superior Court of California, County of Los Angeles; BC648488]
jbho: it will be interesting to see how this plays out. If the daughter’s line was on a family plan in the father’s name, would that constitute consent?

Surprisingly, there were no FDCPA or Rosenthal Act claims in the complaint.

Another Double Dip Class Action

Alves v. Infogroup
Class Complaint – Infogroup allegedly made unsolicited autodialed marketing calls to plaintiff’s mobile, a number which was on the National Do Not Call list.
[C.D. CA; 2:16-cv-09328]
jbho: yet another reminder that plaintiffs can double-dip for violations of §227(b) & §227(c)

Wrong Number Fax Case?

Gorss Motels v. Lands End
Class complaint – Lands End allegedly sent unsolicited faxes, with insufficient opt-out notices, to Gorss properties. The faxes advertised Wyndham hotels branded clothing.
[D. Conn.; 3:17-cv-00010]
jbho: yet another reminder that faxes are covered under the TCPA.

Don’t have all the details here yet, but there doesn’t appear to be any relationship between Gorss & Wyndham. I wonder if there is a reassigned number involved? Or maybe some poor data hygiene in compiling a contact list? Stay tuned…

Another Suit Over Malformed Faxes

Bolling Prescription Lab v. Adelphia
Class complaint – Adelphia allegedly sent unsolicited faxes, with insufficient opt-out notices.
[N.D. Ill; 1:17-cv-01485]
jbho: looks like another case claiming a technical violation of the fax opt-out rules. Remember, opt-out notices must:
• be clear and conspicuous
• be on the first page of the ad
• state recipient may opt-out and failure to honor the opt-out, within 30 days, is unlawful
For a refresher see: https://apps.fcc.gov/edocs_public/attachmatch/DA-14-1572A1.pdf

Whether a malformed opt-out notice is more than a “bare procedural violation” is yet to be seen.

December 2016

Another Spam Text Class

Huang v. Neiman Marcus
Class complaint – Nieman Marcus allegedly sent unsolicited (ATDS) marketing texts to plaintiffs mobile. Texts were received through plaintiff’s WeChat application, and she claims she never provided consent to receive the marketing texts.
[E.D. N.Y.; 1:16-cv-06763]
jbho: Here plaintiff received the texts through her WeChat app (an app that provides text messaging, hold-to-talk voice messaging, broadcast messaging, video conferencing, and other functions). Plaintiff alleges that WeChat is a phone based system, so although the messages were received via an app, the underlying channel for the messages was SMS. Per the complaint: “WeChat is not an internet-only texting app because it relies on a cellular connection whenever the user is not connected to the internet: “WeChat is accessible through both Wi-Fi or cellular data. It is completely free to use when connected to Wi-Fi. Cellular data usage is charged by your network provider.”” http://help.wechat.com/cgi-bin/micromsg-bin/oshelpcenter?opcode=2&plat=android&lang=en&id=120813euEJVf141023IJnQne&Channel=helpcenter

One to watch. Chance defendant can defeat class certification on commonality & typicality (e.g., WiFi v. Phone received messages)? Stay Tuned…

UPDATE – 6Mar2017 – plaintiff voluntarily dismissed her claims (Doc #9), so I guess we won’t get to see how this one would have played out.

Another Robocall Complaint

Abellard v. Medical Management (d/b/a Banfield Pet Hospital)
Complaint – Banfield allegedly made autodialed and prerecorded calls about his Optimum Wellness Plan. Plaintiff stated he had cancelled the plan several months before, and calls continued despite asking them to stop. Plaintiff claims he then informed Banfield in writing to cease calls, yet they still continued.
[S.D. FL; 1:16-cv-25146]
jbho: When someone says stop calling, STOP CALLING!

November 2016

Another Double Dip Class Action

Mey v. Festiva Development Group
Class complaint – Festiva, through its agents, allegedly made unsolicited autodialed telemarketing calls to plaintiff’s mobile, a number that was on the national Do Not Call list.
[M.D. FL; 6:16-cv-01823]
jbho: yet another reminder that plaintiffs can double-dip for violations of §227(b) & §227(c).

STOP Failing To Honor Opt-Outs – Part 1

Moskowitz v. Fairway
Class complaint – Fairway allegedly continued to send marketing (ATDS) texts to plaintiff despite being ‘notified’ by plaintiff to stop. Two additional marketing texts were sent almost simultaneously with an opt-out confirmation text.
[D. Conn; 3:16-cv-01831]
jbho: it looks like the extra texts came within the five minute grace period established in the FCC’s Soundbite ruling, but came AFTER the confirmatory opt-out text. It will be interesting to see how this one goes.

STOP Failing To Honor Opt-Outs – Part 2

Epps v. Office Depot
Class complaint – Office Depot allegedly continued to send marketing (ATDS) texts to plaintiff despite being ‘notified’ by plaintiff to stop.
[C.D. CA; 2:16-cv-08223]
jbho: this one sounds like we might have a TCPA troll, where plaintiff signs up for a text program and opts-out hoping to get more texts. Unlike the complaint above (Moskowitz v. Fairway), the complaint here does not specify whether plaintiff actually replied STOP, and there are no exhibits attached to show how Office Depot was ‘notified.’ Nonetheless, there is currently no ‘bad faith’ exception under the TCPA, so irrespective of plaintiff’s motives, you probably have to monitor multiple channels for SMS opt-outs.

Yet Another Failure To Honor Opt-Outs

Peterson v. Montgomery Ward
Complaint – Montgomery Ward allegedly made autodialed and prerecorded debt collection calls to plaintiff’s mobile (up to three times per day), and continued to call after she requested calls stop. Plaintiff alleges she received 100 calls after revoking consent (and informing Montgomery Ward she was already making payments).
[M.D. FL; 8:16-cv-03078]
jbho: the complaint includes FCCPA claims as well. Will 20 calls per month constitute harassment? Will three times per day constitute harassment? Stay tuned…

Fax Spam Still Alive

Centerville Clinics v. EHT Pharmacy
Class Complaint – EHT allegedly sent unsolicited faxes promoting its Curexa pharmacies, faxes that failed to include the statutorily required opt-out notice. Plaintiffs claim they had no previous relationship with EHT.
[N.D. Ill.; 1:16-cv-10536]
jbho: a reminder that the TCPA covers faxes too.

October 2016

Another SPAM Text Class Action

Bodie v. Lyft
Class complaint – Lyft allegedly sent unsolicited (ATDS) texts encouraging plaintiff to download the Lyft mobile app. Plaintiff claimed he was not a Lyft customer, and never provided Prior Express Written Consent to receive the texts.
[S.D. CA; 3:16-cv-02558]
jbho: not sure if this one is a consent issue, or a data quality issue (e.g., reassigned number). Also will be interesting to see if the court feels an invitation to download an app constitutes marketing. Stay tuned…

Another Double-Dip Robocall Class Complaint

Rabago v. Harley Davidson
Class complaint – Harley Davidson allegedly made unsolicited autodialed telemarketing calls to plaintiff’s mobile, a number that was on the national Do Not Call list. Calls allegedly continued despite requests to stop.
[C.D. CA; 5:16-cv-01987]
jbho: yet another example of how plaintiffs can double dip for violations of §227(b) & §227(c).

September 2016

Another Double-Dip Class Action

Menichiello v. Verizon
Class complaint – Verizon allegedly made unsolicited telemarketing calls to plaintiff’s mobile without consent, to a number on the National Do Not Call list. Complaint specifies two classes: an ATDS Class and a DNC Class.
[C.D. CA; 8:16-cv-01635]
jbho: another example of how plaintiffs can double dip for violations of §227(b) & §227(c).

Also, although there is a carve out for calls made by carriers where consumers are not charged, i’m not sure if that only applies to autodialed or prerecorded calls under §227(b).
Stay Tuned…

No Such Thing as Free Lunch – Part One

Rahmany v. T-Mobile
Class complaint – T-Mobile allegedly sent unsolicited (ATDS) texts marketing Subway restaurants. The texts read:

This T-Mobile Tuesday, Score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details: http://t-mo.co/

Plaintiffs allege the texts fell outside the scope of any consent related to provision of the T-Mobile wireless service, they never provided PEWC for the marketing texts, and never downloaded the T-Mobile Tuesdays mobile app.
[W.D. WA; 2:16-cv-01416]
jbho: similar to the above, it will be interesting to see if the above mentioned carrier exemption can apply to texts promoting a partner service.

No Such Thing as Free Lunch – Part Two

Warciak v. Subway
Class complaint – Subway allegedly sent unsolicited (ATDS) marketing texts. The texts read:

This T-Mobile Tuesday, Score a free 6” Oven Roasted Chicken sub at SUBWAY, just for being w/ T-Mobile. Ltd supply. Get app for details: http://t-mo.co/

Plaintiffs allege they never consented to the texts, and while they were T-Mobile customers, that relationship had nothing to do with Subway.
[N.D. Ill.; 16-cv-08694]
jbho: same suit as above, but this time filed against Subway, and not the sender. Interesting…

BTW: the Subway owner in this suit, Doctor’s Associates, recently failed to dodge a FACTA suit . What luck…

August 2016

Class Says Senders Obliged To Scrub Reassigned Numbers

Halfon v. Buy Buy Baby
Class complaint – Buy Buy Baby allegedly sent unsolicited (ATDS) texts to plaintiff’s reassigned mobile number without consent. Plaintiff claimed he received the texts because Buy Buy Baby “failed to implement any policies or protocols to identify and ‘scrub’ reassigned numbers from its database.”
[D. N.J.; 2:16-cv-05037]
jbho: might be a good idea to make reassigned numbers scrubs part of any ongoing/subscription text message programs.

This is a tricky one. It appears Buy Buy Baby has a good consent model. They are getting hit on the technicality of texting a reassigned number. The complaint makes no mention of whether plaintiff ever replied STOP (simply to entrap the sender?).

Another Robocall Class Action

Klein v. Hyundai Capital
Class complaint – Hyundai allegedly made autodialed calls to plaintiff’s mobile without consent. Plaintiff claims the calls were intended for someone else, he did not own a Hyundai, and never gave Hyundai his mobile number. Hyundai continued calling despite plaintiff’s request they stop.
[C.D. CA; 8:16-cv-01469]
jbho: another example of the importance of good data hygiene.

The complaint doesn’t specify the types of calls, just that they were made to a wrong number. But since plaintiff seeks to represent a class that includes “non-debtors” the calls were likely debt collection.

July 2016

Generic Robocall Allegations

Cruz v. Conn’s
Complaint – Conn’s allegedly made unsolicited autodialed calls to plaintiff’s mobile, and continued to call despite requests to stop. The complaint does not specify the purpose of the calls.
[S.D. TX; 4:16-cv-01642]
jbho: on thing is universal – always get consent!

Another SPAM Text Class Action

Fitzgerald v. Universal
Class Complaint – Universal, through its agent Twilio, allegedly sent unsolicited (ATDS) MMS texts encouraging the purchase of tickets to see the movie “Warcraft.” Plaintiff claims her never provided his mobile number to Universal, and never otherwise consented to receive the texts.
[M.D. FL; 6:16-cv-01193]
jbho: MMS can implicate data rate charges, so may support harm claims? 

More TCPA Fun

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