Aww the terrible AFLAC Duck.
With college football season behind us– great national championship game BTW– I probably won’t hear from that terrible annoying duck for a while. But AFLAC will be hearing from the TCPA for quite a while after getting DESTROYED by a guy without a lawyer up in Washington state.
So embarrassing.
And yes, AFLAC was using a big law firm on this one that got destroyed by a guy with no lawyer but who actually understands the TCPA. I wonder if they used GenAI to write their briefs?
Hmmm.
Regardless, in Barton v. AFLAC, et al. 2026 WL 177598 (W.D. Wash. Jan. 22, 2026) the Court denied AFLAC’s effort to dismiss Barton’s TCPA suit against the insurance giant.
The order is a bit vague but it looks like AFLAC was buying leads– or working with an agent who was buying leads– and that was enough to keep it trapped in the case. Specifically:
First, the telemarketer sold an Aflac policy that Aflac “then issued,” and “[w]ho but an [Aflac] agent can sell an Aflac final expense insurance policy[.]” Id. (citing Dkt. 1-2 ¶ 232). Second, “[Aflac] knew the name, phone number, and address of their phone agent who sold the [Aflac] policy.” Id. Mr. Barton concludes that Aflac is vicariously liable through apparent authority or ratification because the telemarketer “communicated to [him] that he had the power to make phone calls selling [Aflac’s] insurance policies,” and Aflac “confirmed [the telemarketers’] authority to call [him and to sell Aflac] insurance policies by issuing a policy resulting from [the telemarketer’s] phone call.” Id. The Court finds that Mr. Barton has sufficiently alleged vicarious liability between Aflac and the telemarketers to survive a motion to dismiss pursuant to Rule 12(b)(6)
Hmm, that is a pretty low bar here. I think big law counsel probably pissed the judge off with bad arguments elsewhere in the brief. Still, it is important for insurers working with agents/lead generators to recognize some courts will keep you in a case any time you sell a product based on phone calls made by someone else– even though that really should not happen.
Notably Barton also defeated Aflac’s somewhat incoherent argument that he lacked a 227(c) claim as he alleged three calls to his cell phone while it was on the DNC list without consent. Aflac argued Barton later expressed interest in insurance– but that doesn’t sanitize calls made prior to that expression of interest (which everyone in TCPAWorld knows, but big law can’t wrap its head around.)
And Barton–a guy without a lawyer–also beat Aflac’s motion to dismiss his claim as to the content of messages. The marketer did not identify itself properly on one of the calls the court attributed to Aflac. This is sort of insane because THERE IS NO PRIVATE RIGHT OF ACTION UNDER 227(D) but Aflac’s big law counsel seems to have missed that issue entirely.
Sigh.
To wrap up the disaster Aflac also lost its bid to dismiss the Caller ID claim–i.e. the marketer failed to display correct caller ID information so that will also cost Aflac.
For what it is worth, Barton is a pro at this. He may be the next Diana Mey. So even though he lacks an attorney he is still a decent litigator (although Queenie crushed him not long ago.)
Ironically I am certain Alfac could have settled this case for $1,500.00 or so. And they’ve now spent $150,000.00 or so (probably more) with a big law firm and gotten completely destroyed.
I am all for fighting litigators like Barton but, my goodness, hire counsel that actually knows what they’re doing. Otherwise you just made bad case law for the rest of us. That is LITERALLY why I started TCPAWorld– to held other DEFENSE lawyers to learn the law and avoid terrible outcomes like this that impact everyone.
And get yourself (and your big law counsel!) a copy of the totally FREE 2026 Troutman Amin, LLP TCPA Annual Review, presented by Contact Center Compliance so everyone knows the tips, tricks and legal developments that will help you avoid disasters like this one!
Chat soon.
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The main issue with AI is that it tends to treat everything you say as fact and is often too agreeable. Like talking to a friend, you have to push back and clearly state your boundaries—especially that you do not want it stretching laws, procedures, or assumptions.
If you lay out only the facts you know you can 100% prove, organize the case details in a Word document, and scan all supporting materials into searchable PDFs that can be read and indexed, it works very well.
Ultimately, it’s up to the user to set the guardrails and verify the work.
The best approach is to maintain a running Word document and keep your PDFs organized and close at hand. When you need to work through a situation, re-upload everything during that session. While AI can retain some context over time, it’s not something you should rely on for accuracy or completeness.
Charlie; To further reflect upon your thoughtful insights into AI, it has been my experience that AI has “learned” that the most effective way to achieve further engagement is to create feedback looks that involve confirmation bias. So it would seem that the more reliance on AI to provide generative feedback, the more likely that the answers will reflect the intended consequences of the way that questions that are asked by the consumer.