REFUNDED AND DISMISSED: Court Dismisses TCPA Vicarious Liability Claim After Insurer Returns Policy Proceeds

Hi TCPAWorld!

In Aguilar v. Liberty Bankers Life Insurance Co., No. H-25-4990, 2026 WL 2033141 (S.D. Tex. July 14, 2026), the United States District Court for the Southern District of Texas dismissed a pro se plaintiff’s TCPA complaint against a life insurer for failure to state a claim, finding that the plaintiff failed to plead any viable theory of vicarious liability for calls placed by third-party telemarketers. The Court rejected all three agency theories: (1) actual authority, (2) apparent authority, and (3) ratification. The ratification analysis is the one to watch. The plaintiff bought the insurer’s policy to prove the calls were made on its behalf, but the insurer returned every penny after he cancelled, so it retained no benefit from the allegedly unlawful campaign.

Background

Plaintiff Timothy Aguilar, proceeding pro se, alleged that he received at least 163 calls from a variety of spoofed phone numbers soliciting final expense life insurance products on behalf of Liberty Bankers Life Insurance Company. Aguilar has been on the federal Do Not Call Registry since 2012 and the Texas Do Not Call Registry since August 2023. He sued Liberty Bankers and John Doe telemarketers under the TCPA and similar Texas laws.

Aguilar’s theory was that Liberty Bankers hired insurance agents, including one Claudia Tradardi Napoletano, to telemarket its products. To confirm the connection, Aguilar did something we see from time to time in the professional plaintiff playbook: he purchased the life insurance product the callers were selling. When the policy arrived in the mail, he alleged the signature on it was Napoletano’s, confirming (in his view) that the calls were made on Liberty Bankers’s behalf.

In August 2025, Aguilar cancelled the policy, declared any established business relationship over, and sent a notice revoking any consent he had given. Liberty Bankers returned the policy proceeds of $90.36 by check. Aguilar never signed or endorsed the check because, he says, it came with a waiver of rights and claims attached. Keep that check in mind. It ends up doing a lot of work.

Standing Motion Denied: Agency Is A Merits Question

Liberty Bankers moved to dismiss both for lack of standing and for failure to state a claim. The Court made quick work of the standing motion, denying it because Liberty’s traceability argument depended entirely on the merits question of agency liability. If Liberty is liable under longstanding agency theories, then the alleged misconduct is traceable to Liberty. Conflating Article III standing with the merits is a mistake courts keep flagging, and this Court cited TransUnion and out-of-circuit authority to hold that vicarious liability theories rooted in traditional agency principles do not raise a standing problem. Defendants take note: the standing attack on agency allegations rarely lands. The merits attack is where the action is.

Actual Authority: Conclusory Allegations And Contracts That Prohibit The Conduct

On the merits, the Court walked through the familiar trio from the FCC’s Dish Network ruling: actual authority, apparent authority, and ratification. The law does not presume agency, and the plaintiff must plead it.

Actual authority failed for two reasons. First, the complaint offered only conclusory allegations that Napoletano and other telemarketers were Liberty’s agents authorized to telemarket on its behalf. That is not enough. Following Jones v. Royal Administration Services, the plaintiff must allege actual authority to place the unlawful calls, not just authority to sell the product. Second, Liberty proffered its actual contracts with Napoletano and its telemarketing firms, which the Court considered under Rule 10(c) because the complaint relied on the relationship those contracts created. The Napoletano agreement expressly prohibited the use of an ATDS, prerecorded messages, calls to numbers on a do-not-call registry, and any conduct violating state and federal telemarketing laws. Hard to allege actual authority to break the law when the written agreement forbids exactly that.

Apparent Authority: The Principal Has To Say Something

Apparent authority failed as well. Under Texas law, apparent authority is based on estoppel and turns entirely on the conduct of the principal. Aguilar never alleged that he spoke with a Liberty Bankers employee or that Liberty itself made any representation to him about the telemarketers or their authority. He alleged only conversations with the agents and contractors he wanted to hold Liberty responsible for. Because apparent authority requires reliance on representations made by the principal, and there were none, the theory failed.

Ratification: No Benefit Retained, No Ratification

Ratification is where this opinion earns its spot in the caselaw. Ratification occurs when a principal retains the benefits of a transaction after acquiring full knowledge of it. In TCPA cases, courts like the Aranda court in the Northern District of Illinois have found ratification where a defendant knew about an unlawful campaign and kept accepting business flowing from it.

Here, Aguilar bought the policy, which would normally be his best ratification fact. But Liberty Bankers returned the $90.36 in proceeds after he cancelled. Because Liberty retained no benefit from the allegedly unlawful calls, there was nothing to ratify.

Aguilar argued that he never signed or endorsed the refund check because it had a waiver of rights and claims attached. The Court called that fact immaterial. Liberty had ceded back all benefits it gained from the calls, and the Court noted the settlement language on the back of the check was unclear on whether it reached this lawsuit at all. Even if it did, sending a settlement check does not ratify the underlying calls. The refund cut off the ratification theory whether or not the plaintiff ever cashed it.

Takeaways

The Court granted the motion to dismiss without prejudice, denied Aguilar’s motion for leave to amend, and gave him until July 31, 2026 to file a new motion for leave, capped at five pages, explaining how an amended complaint would adequately allege vicarious liability.

For defendants, this opinion is a nice roadmap. First, put your telemarketing contracts in front of the Court at the pleading stage where the complaint relies on the agency relationship. Compliance clauses prohibiting unlawful calling practices can defeat actual authority allegations before discovery ever starts. Second, apparent authority requires conduct by the principal, and a plaintiff who only ever spoke with the callers cannot plead it. Third, and most interesting, a prompt refund can defeat a ratification theory even where the plaintiff purchased the product specifically to build his case. Plaintiffs who purchase products to build a paper trail should understand that a full refund may erase the retained benefit that ratification requires.

We will keep you posted, TCPAWorld!