Who Called Who?: Eastern District of New York Dismisses Complaint by Serial TCPA Plaintiff For Failure To Allege Who Actually Called Him

Long-term residents of TCPA World are likely familiar with Todd C. Bank, a New York attorney and frequent TCPA plaintiff. Well, the Eastern District of New York is familiar with him too, and a Magistrate Judge there recommended that a complaint he filed against Vivint Solar be dismissed for failure to plead actual facts showing that Vivint or one of its agents called him. See Bank v. Vivint Solar, Inc., No. 18-cv-2555, 2019 U.S. Dist. LEXIS 30638 (E.D.N.Y. Feb. 25, 2019). In recommending dismissal, the court noted that “as a frequent filer of TCPA claims, on behalf of himself and others, Bank is well versed in how to identify an unauthorized caller.” The decision is instructive for several reasons, including the need to plead actual facts and the standard for vicarious liability under the TCPA.

The Banks decision has two core holdings. The first holding is that the plaintiff failed to plead facts that, if true, identified the defendant as the actual caller. The calls at issue allegedly were to promote “residential solar-energy services.” Following an opening prerecorded message, the call would be transferred to a live agent. The plaintiff, however, did not state whether the prerecorded message disclosed the name of the caller, the caller ID, or whether the live agent identified a company name. Thus, the complaint did not include any facts that would show that the calls were from an actual business rather than one of the many offshore scam callers that are actually responsible for the scourge of robocalls. The court therefore recommended dismissal of the plaintiff’s direct-liability claims.

Second, the court rejected the plaintiff’s vicarious liability theories for similar defects in pleading. To prevail on a vicarious liability claim, a TCPA plaintiff must show that the caller acted as an agent of the defendant or under the control of the defendant. The classic example is a marketing firm hired specifically to place marketing calls or texts. In this case, however, the plaintiff relied on conclusory allegations that essentially re-stated the elements of different agency theories rather than pleading facts that, if true, would show a relationship, direction, or control. Thus, after properly disregarding the many conclusory allegations of the complaint, the court recommended dismissal of the agency claims as well.

The Banks decision is a prime example of proper use of a motion to dismiss and highlights the extent to which many serial TCPA filers rely on boilerplate allegations. The court zeroed-in on the many instances in which the complaint relied on boilerplate conclusions instead of actual, case-specific factual allegations. In that manner, the decision is similar to Broughton v. DJ Acquisitions, LLC, No. 1:18-cv-01636 (N.D. Ga. Jan. 7, 2019), which rejected the plaintiff’s ATDS-related allegations as conclusory. Hopefully more cases will follow the Banks and Broughton courts’ lead and continue to reject serial TCPA complaints that contain nothing more than boilerplate allegations copied from one complaint to the next.

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