You Cannot Nail A Ghost, Especially With Flimsy Allegations

A Plaintiff tried to pin a company with TCPA liability based on a third party’s calls, but the California district judge was not having any of it.

In Abante Rooter & Plumbing v. Mahalo, both parties agreed that the Defendant never called the Plaintiff. Instead, a third party lead-generator had called him. The Plaintiff attempted, in a summary judgment motion, to argue that the Defendant granted the third party apparent apparent authority to call him even though he was on the DNC, and to use an ATDS. Alternatively, the Plaintiff argued that the Defendant was bound by the third party’s calls by accepting their benefits. The judge literally picked both arguments apart.

Based on the record, the judge held the Defendant could not have granted apparent authority for the third party’s calls. The judge held there was only one action attributable to the Defendant: a conversation with the Plaintiff off a call that was transferred from the third party. But, the judge held that that by the Defendant engaging with the Plaintiff – a lead generated by the third party – the Defendant did nothing to imply it authorized the third party to use an ATDS, or call someone on the Do-Not-Call Registry. As to the Plaintiff’s conjecture that the Defendant ratified the third party’s calls, by accepting their benefits, the shoe did not fit. There was no record that the Defendant, after discovering the third party’s alleged TCPA violations, accepted the benefits of the agency relationship. In fact, it was undisputed that the Defendant cancelled its relationship with the third party after the Plaintiff let the Defendant know about the alleged TCPA violations. So, the court threw that ratification theory out the window as well; essentially pronouncing the alleged agency-principal relationship theory a phantom.

In another riveting wrinkle, the court went out of its way to hold that even if the Plaintiff developed facts demonstrating a viable theory of vicarious liability, his ATDS-based claims would disappear at the motion for summary judgment stage. As background, the Court stated that an ATDS is, under Marks, technology that stores or produces telephone numbers, using a random or sequential number generator, with the capacity to dial such numbers. When clarifying the record to its essence, Plaintiff’s entire proof that an ATDS was used hinged on his allegation that when he answered the phone, he heard a “clicking noise” and a “long pause” before the third party lead generator representative introduced himself, leading Plaintiff to the conclusion that a predictive-dialer-ATDS was used. ( This is a common allegation tossed in many boilerplate TCPA complaints). The Court zeroed in on this, and held “this record contains no direct evidence that [the third party] possessed a predictive dialer or circumstantial evidence that the leadgeneration industry typically (or even sometimes) uses predictive dialers.” This, the court held, may be enough to state a claim and open doors to discovery and expert testimony “[b]ut a reasonable jury could not return a verdict for [Plaintiff] on so flimsy a basis.”

Plaintiff’s Motion for Summary Judgment Denied! Happy New Years!

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