Quick and Dirty: “Click and Pause” Allegations Sufficient to Survive Pleading Stage–Warm Transfer Enough to Show Vicarious Liability

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Every once in a while I’ll have a client tell me they can’t be liable for a call because all they did was accept a warm transfer–they didn’t make the call themselves.

Yeah, that’s likely not going to fly. At least not at the pleadings stage.

In Landy v. Natural Power Sources, Civil Action No.: 3:21 -cv-00425-PGS-TJB, 2022 U.S. Dist. LEXIS 46534 (D. N.J. Mar. 14, 2022) the Court rejected a motion to dismiss, finding that allegations of a warm transfer were sufficient to demonstrate control over the caller.

The FAC sufficiently alleges an agency relationship as it may be inferred from the context of the cell phone process. That is, the smooth transfer from the initial ADTS contact to “Steve” and then to “Evelyn” of [Defendant], shows a cooperative relationship from which one may infer authority or apparent authority of Suntuity to the initial contact by ADTS. Additionally, the FAC alleges that the initial ADTS contact was made to market Suntuity’s products, the initial call was made at the direction of Suntuity, and that Suntuity knew the initial caller utilized an ADTS to generate customers for Suntuity. 

So just because the caller was selling products Suntuity offered and transferred the call to Suntuity, the court inferred that the calls were made via an agency relationship and Suntuity could be held liable for the calls.

Hmmm.

And if you think that analysis was lean, check out the ATDS portion:

Here, Landy alleges that she received a call on her cell phone; and there was a pause before the operator entered onto the call. The pause is sufficient to infer that an ATDS initiated the call.

That’s it.

That’s the entire analysis.

Only one call is at issue here folks. But just because there was a pause before a live operator picked up, the court found an ATDS was used.

So much for Facebook neutralizing these cases.

Landy shows just how dismissive some courts are of pleadings challenges in TCPA cases. (It probably says something that the court couldn’t spell ATDS and kept calling it an ADTS.) But bottom line:  some courts are going to trap a caller in the case until discovery–no matter what. It remains to be seen whether the Defendant can extract itself from the case once all the facts are in. But the case is certainly about to get a lot more expensive to defend.

We’ll keep an eye on this.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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