Avoiding “absurd” inference in TCPAWorld

A great new TCPA opinion out of Virginia highlights one of my favorite things:  third party management or lack thereof.

In Ackerman v. Look Both Ways Insurance, LLC, 2024 WL 1916694 (E.D. Va., May 1, 2024), Look Both Ways Insurance LLC d/b/a Millennium Health (“Millennium”) hired Fuego Leads to generate leads for new insurance customers.  Fuego told Millennium that Fuego would be utilizing Infinix to dial telemarketing calls and that Fuego required Infinix to follow Millennium’s instructions.

So far so good, until Infinix called the plaintiff more than 100 times as part of its relationship with Fuego and the calls were all “designed to sell…health insurance”.  Infinix left at least one pre-recorded message that included a call-back number and the call-back number was connected to a Millennium employee who promoted Millennium’s insurance services.

Plaintiff sues Millennium for TCPA violations and added Fuego and Infinix in an amended complaint.  Millennium files a Motion to Dismiss for failure to state a claim against Millennium.

Millenium’s arguments are that the amended complaint “relies on conclusory and contradictory allegations” to claim that Millennium is liable for the calls Infinix made based on the contract Infinix had with Fuego.  Millenniuim says there have been no allegations of “any facts plausibly suggesting the existence of an agency relationship between [Millennium Health] and Infinix.

The court disagreed.

According to the court, “the Amended Complaint provides more detail than Millennium Health acknowledges.”  The plaintiff adequatlely plead there were enough facts to show that Millennium directed Fuego and Infinix by placing restrictions on the age of the leads, the volume of leads it could accept, the content of the phone calls, etc. etc. etc.

Millennium then suggest that plaintiff only Fuego had control over Infinix and not Millennium.  Again, the court disagreed.  The Court said Millennium’s “motion asks the Court to overlook the obvious factual link the Amended Complaint alleges between Millennium Health and the calls the plaintiff received: The pre-recorded message included a call-back number that returned to a Millennium Health employee.” (italics in the original!!!)

YES! Millennium said “we aren’t involved.”  Except the calls went back to Millennium.

This is the TCPA version of “the call is coming from in the house!”

The Court went on:

“To conclude that this allegation is insufficient to sustain a claim based on vicarious liability, the Court would have to infer that Infinix sent customer to Millennium Health without Millennium Health’s knowledge or against Millennium Health’s will.  Such an inference would be absurd, and is not permitted by law.” (these italics are mine)

It’s great.

Anyways, once again, we have to know what is happening with our leads.  Where are the going?  Who is acting on our behalf?  All of these questions have to be asked.

Keeping you in the loop…