It wasn’t long ago Queenie crushed repeat litigator Eric Salaiz in a putative TCPA class action–sending him packing with a stunning motion to dismiss victory for a great client.
Well Beyond Finance didn’t hire Queenie and it didn’t turn out so good for them. 😉
In Salaiz v. Beyond Finance, 2023 WL 6053742 (W.D. Tex. Sept. 18, 2023) the repeat litigator sued Defendant claiming it had made illegal auodialer calls without his consent.
Now ATDS cases are basically dead right now –not saying they should be necessarily but courts are just throwing these cases out left and right.
Nonetheless, Salaiz was able to defeat BF’s motion to dismiss on the issue. The Court found Plaintiff sufficiently alleged the marketers BR hired used an ATDS:
Plaintiff has pled specific facts indicating that the calls he received were made using an ATDS. Plaintiff alleges the thirteen calls all came from the same “spoofed” number, FAC ¶¶ 40, 42, they all solicited debt-relief services, FAC ¶ 39, and the solicited services did not target Plaintiff individually but rather targeted “anyone in the United States.” FAC ¶ 44. Plaintiff further alleges the debt-relief services were not personalized to him, but rather were “in the abstract.” FAC ¶ 96. And Plaintiff alleges he did not have “an established business relationship” with Defendant and did not know anything about Defendant prior to the calls. FAC ¶ 46. For these reasons, Plaintiff believes the telemarketers used an ATDS to generate leads for Defendant’s debt relief services. FAC ¶ 30.
Get it?
Because the messages were not personalized and were sent from “spoofed” numbers the Court permitted a finding that an ATDS was used. This is similar to a ruling adopted in Jance and a few other cases. (Remember the Facebook Ruling Resource page is still live and still has all the great ATDS rulings you need!)
The Court also found that Saliaz had alleged enough to pursue his suit against BF even though it had not directly made the calls on a vicarious liability theory:
Here, Plaintiff has alleged the telemarketers called him thirteen times from the same number, always soliciting debt-relief services but never identifying what company they were affiliated with. FAC ¶¶ 39, 45. For the first twelve calls, Plaintiff told the telemarketers he was not interested. FAC ¶ 65 Table A. On the thirteenth call, Plaintiff played along and told the telemarketer he was interested in debt-relief services, at which point the telemarketer collected Plaintiff’s financial and personal information and transferred him to a loan specialist. FAC ¶¶ 52–54, 56. Plaintiff alleges the telemarketer also sent his personal information directly to that loan specialist. FAC ¶ 57. After talking with Plaintiff, the loan specialist sent him two follow-up emails, revealing that the specialist was employed by Defendant. FAC ¶ 64. Plaintiff alleges Defendant knew the telemarketers were violating the TCPA as a sales strategy, FAC ¶ 67, and nonetheless compensated the telemarketers for client referrals, FAC ¶ 69.
Eesh.
Notice also that although the Plaintiff “played along” to get connected with BF on the last call the Court had no problem finding that all of the calls that had come before were chargeable to BF–even though those calls were never sent to it!
This is a recurring problem out thee for lead buyers. A lead generator sells a transfer after making who knows how many attempts to the same number. Then the lead buyer–who only buys one call!–is caught up in a suit related to all the calls that came before.
Plus since this is a class action. all of the calls made by the lead seller are now at issue and BF might be liable for ALL OF THEM unless they were sent to another lead buyer.
Its a real problem folks. and one of the reasons the REACH standards exist!
We’ll keep an eye on this!
And to stay up to date on all of these cases be sure to follow TCPAWorld.com and request a copy of our 2023 TCPA Annual Review presented by TrustedForm!!!