OUT OF THE FRYING PAN?: Court Holds Company Cannot be Liable For Third-Party Calls that Violated Policy, But Policy Itself Might Be Problematic

TCPAWorld giveth. It taketh away. And, sometimes, it maketh worse.

In Ailion v. Healthcare Solutions Team, LLC, Case No. 21 C 6231 2023 WL 2333299 (N.D. Ill. March 2, 2023) the defendant seemed to be doing really well.

The Defendant moved to dismiss arguing that its policies–which it somehow got the court to consider at the pleadings stage–prevented calls to numbers on a DNC list without express consent. While the Plaintiff argued the Defendant was, nonetheless, liable for these calls the court disagreed:

“A principal is not responsible for the actions of an agent which are made in direct contradiction to the principal’s instructions.”

Keep that one in mind. Pretty important.

But Plaintiff’s lawyers in TCPAWorld are clever.

Plaintiff countered the argument by saying that the policy itself was insufficient because it did not require affiliates of the company to report DNCs back to the company. This meant that different affiliates might be calling the same customer on behalf of the same company after a different affiliate was asked to stop calling. And that is a BIG problem (just ask Allstate.)

So while the Defendant won a motion to dismiss on the “calls weren’t allowed argument”–that was unlikely to be certified owing to individualized issues– it arguably faces an even bigger issue on the “policy wasn’t good enough” argument–which certainly might be certifiable.


Its tough to litigate in TCPAWorld, I tell you.




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