NO SECOND CALL, NO CLAIM: Court Dismisses Spoliation Allegations Over Choice Of Law, Expired Retention Rules, And Failure To Allege Multiple Calls In Violation Of The TCPA’s DNC Rules

Hi TCPAWorld!

In Moore v. Farmers Group, Inc., No. 23-cv-16587, 2026 WL 1506496 (N.D. Ill. May 29, 2026), the Northern District of Illinois dismissed both plaintiffs’ negligent spoliation of evidence claims and denied the motion to strike. For one plaintiff, the claim failed because the state with the most significant connection to the case does not recognize negligent spoliation as a tort. For the other, it failed because he alleged only one telemarketing call and a single call cannot support a TCPA DNC claim, leaving the spoliation count with no valid claim to attach to.

Plaintiffs George Moore and Robert Hossfeld brought this putative TCPA class action against multiple Farmers Insurance entities, alleging that three independent telemarketing agencies made calls on Defendants’ behalf to numbers on the national do-not-call (DNC) registry. The third amended complaint added a fourth count for negligent spoliation of evidence, arguing that Defendants had a duty under the Telemarketing Sales Rule (TSR), 16 C.F.R. § 310, to maintain telemarketing records and that Defendants failed to preserve or obtain those records before the agencies went out of business or disposed of their files.

That duty is central to the claim: the Telemarketing Sales Rule (TSR) required sellers to maintain certain records related to telemarketing activity, and Defendants’ agreements with their agencies required the agencies to return all telemarketing materials upon termination. When those agencies folded or separated, the records disappeared, and Plaintiffs alleged that Defendants’ failure to obtain and preserve them amounted to negligent spoliation.

The court’s first question was which state’s law governed. Because Hossfeld is a Texas resident, the relevant agencies operated in Texas, the calls were made in Texas, and the records were created, stored, and destroyed in Texas, the court applied Texas law. The only Illinois connection was that the lawsuit was filed there after the records were already gone. Texas does not recognize negligent spoliation as an independent tort. End of claim.

The court also noted in a footnote that even under Illinois law, the Roberts claim would have failed: Roberts made his call in July 2020, and the TSR at the time required only a 24-month record retention period meaning any obligation expired by July 2022, more than a year before Roberts disposed of records and well before any litigation was imminent. No duty, no claim.

Both Moore and Rodriguez are Illinois residents, so Illinois law applied without dispute. Illinois requires a spoliation plaintiff to plausibly allege four elements: (1) duty to preserve; (2) breach; (3) the destruction was the proximate cause of the plaintiff’s inability to prove an underlying claim; and (4) actual damages. The claim failed on elements three and four.

Why? Because Moore’s complaint alleged only one call from Rodriguez in March 2024. A TCPA DNC claim under 47 U.S.C. § 227(c)(5) requires more than one call within a 12-month period. One call is not a violation. Without a second call, there is no underlying claim. Without an underlying claim, destruction of records cannot be what prevented Moore from winning. Plaintiffs argued that there might have been a second call that would never be found precisely because of the spoliation. The court rejected that as speculation: discovery had been open for over a year, Moore himself would know if he received a second call, and his own carrier’s phone records untouched by the alleged spoliation would show it.

The motion to strike the Rodriguez allegations was denied. Under Rule 12(f), matter may be stricken only if it has no possible bearing on the litigation, and the court declined to find that standard met. Discovery burden concerns were better addressed under Rule 45(d) through a motion to quash. The court also issued a Rule 11 reminder to Plaintiffs’ counsel for citing a Seventh Circuit decision that does not contain the attributed quotation, does not address choice-of-law, and was not decided en banc.

This decision illustrates several practical obstacles for negligent spoliation claims in TCPA cases. Choice of law can be dispositive. Where the plaintiff lives, where the telemarketer operated, and where the records were kept and destroyed – all factor into which state’s law governs, and filing in a plaintiff-friendly state does not change that analysis when the state had no meaningful connection to the underlying events. The TSR retention period also matters; the current five-year requirement is relatively new, and calls from the prior 24-month period may fall outside any duty to preserve, particularly when litigation was not imminent at the time. Even where favorable law applies, a spoliation claim still needs a valid claim to attach to. Plaintiffs cannot use a spoliation theory to construct a TCPA violation the pleadings do not support, and one call simply cannot satisfy the “more than one call” requirement for a DNC claim. Courts will also not fill that gap with speculation; if the plaintiff and his own carrier records reflect a second call, asserting that one might have existed and might have been destroyed is not enough at the pleading stage. Finally, citations matter. Plaintiffs’ counsel here attributed a quotation and en banc status to a Seventh Circuit decision that supports neither, and the court’s Rule 11 reminder was pointed. Always verify the quote, the holding, and the procedural history before putting them in a brief.

The TCPA claims continue. We will keep you posted, TCPAWorld!