Hi, TCPAWorld!
In Cosenza v. Nice North America, LLC, the United States District Court for the Central District of Illinois dismissed a prerecorded voice class action because the amended complaint alleged only that “Defendant and/or its agents” made the calls. David Cosenza v. Nice North America, LLC, No. 1:26-CV-1132, 2026 WL 2248829 (C.D. Ill. Aug. 4, 2026).
Plaintiff answered a call on February 9, 2026 and heard a prerecorded pitch for home security and monitoring services. The voice sounded artificial, the delivery had noticeable delays, and nothing in the message was personalized to him. He asked for a representative, was connected to a live person, and was told the company’s website was http://www.2gig.com. He sued Nice North America, LLC, which does business as 2GIG, on behalf of a putative class consisting of “[a]ll persons in the United States who from four years prior to the filing of this action through class certification (1) Defendant, or an agent calling on behalf of the Defendant, called on their cellular telephone number (2) using the same or a substantially similar artificial or pre-recorded voice message used to call Plaintiff.” He pleaded that he did not know the caller’s relationship to Defendant and that discovery would reveal it.
The Court found the vicarious liability theory waived because Plaintiff abandoned this theory and addressed solely direct liability. Further, Plaintiff alleges that “any part calling consumers and referring them to [Defendant’s] website was acting with [Defendant] apparent authority because it is completely implausible to believe that telemarketers are referring to consumers to [Defendant’s] website without being directed or encouraged to do so by [Defendant] in some way.” Apparent authority, however, requires a manifestation from Defendant to Plaintiff indicating that the representative had authority to act on Defendant’s behalf. Here the only manifestation came from the caller, but an agent’s own statements cannot create that authority. Naming the seller’s website is an agent statement. No reliance was pleaded either.
Relying on the same facts, Plaintiff also alleged actual authority. The court contrasted Bilek v. Federal Insurance Co., 8 F.4th 581 (7th Cir. 2021), where the complaint alleged approved scripts, tradename use, product quotes, and access to the defendant’s systems. Here there was an unidentified representative who gave Plaintiff a website, and a prerecorded message marketing products Defendant sells.
The opposition rested entirely on direct liability, a theory largely absent from the pleading, which said only that “Defendant and/or its agents transmitted unwanted telephone calls to Plaintiff[.]” The court distinguished Atkinson v. Choice Home Warranty, No. CV 22-04464, 2023 WL 166168 (D.N.J. Jan. 11, 2023), where the plaintiff asked whether the company making the calls had a website and the representative gave the defendant’s, which the court read as the caller stating, in effect, that Defendant initiated the call. Here the representative supplied a website without saying who placed the call. So Plaintiff could not establish direct liability because the pleading alleged no direct connection between the caller and Defendant.
The takeaway here is simple. Saying that Defendant or someone working for it made the call does not tell the court who placed it. Pleading both vicarious liability and direct liability theories on the same facts makes neither plausible. For Plaintiffs, the difference between Atkinson and Cosenza was one question on the call. Ask who is calling, not just what the website is.
We will keep you posted, TCPAWorld!