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

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.


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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