TRAINING IS REQUIRED!: Liberty Mutual Loses Summary Judgment Bid In TCPA Class Action Because It Did Not Prove DNC Policy Training–Don’t Make That Mistake

LCOC V Ticket Prices as I post: $239.00

Really interesting one out of D. Mass. this morning.

Liberty Mutual just came very close to shaking lose of a TCPA class action brought by the Wolf– but got snagged by a failure to prove it was providing adequate training to its employees on the use of the DNC list.

In Ward v. Liberty Mutual, 2026 WL 2957957 (D. Mass Oct. 1, 2026) the parties filed cross motions for summary judgment in a TCPA class action. Spoiler: both sides lost.

Liberty Mutual did a very nice job of having the court accept its Jornaya consent form and using the wayback machine to confirm the contents of a URL on the key date– but the Court denied it MSJ on consent because the plaintiff denied visiting the website (always a problem with third-party lead generation consents.) And that was not a surprise.

What was surprising is Liberty Mutual lost its safe harbor argument and the reason is really important for folks to understand and learn from.

First, in DNC class litigation a defendant who–let’s say– bought a bad lead and made calls without consent by accident can avoid liability if it can demonstrate it had a policy designed to honor the DNC rules and adequate training on the subject.

Liberty Mutual got halfway there. Although the court was not totally impressed with the evidence of LM’s policy– the declaration of its officer suggested a broader policy than was actually provided to the court– the Court seemed willing to accept LM’s policies were acceptable in theory.

But when it came to the issue of training the court found LM had not carried the day:

Further, the safe harbor defense requires that Liberty Mutual “train[ ] its personnel, and any entity assisting in its compliance, in procedures established pursuant to the national do-not-call rules.” 47 C.F.R. § 64.1200(c)(2)(i)(B). The Hemker declaration offers only a cursory and general mention of training, see Dkt. 95-1 ¶¶ 35, 39, and while Liberty Mutual claims in its statement of facts that “policies are communicated to relevant employees through internal manuals, guidance, and regular training,” Dkt. 112 at 29, ¶ 22, the Hemker declaration does not say this specifically, nor are these manuals and guidance materials in the record.

The safe harbor defense also requires Liberty Mutual to train “any entity assisting in its compliance.” 47 C.F.R. § 64.1200(c) (2)(i)(B). While Liberty Mutual describes its relationship with Jornaya, Dkt. 94 at 20–21, it does not describe how its training or its “policy applies to all of its own employees, the employees of any subsidiary companies and any company with whom [it] contracts,” Van Elzen v. Am. Home Shield Corp., 2026 WL 1078771, at *10 (E.D. Wis. Apr. 21, 2026) (granting summary judgment based on safe harbor defense). Therefore, Liberty Mutual is not entitled to summary judgment on its safe harbor defense. 

Get it?

Liberty Mutual asserted in its motion that it had “regular training” but the declaration (i.e. the evidence presented) did not demonstrate as much.

Was this an oversight by counsel or did LM really just not have training? Don’t know.

Either way though the issue is headed to a jury!

Two key take aways:

1. Just because you have a Jornaya doesn’t mean you can’t be sued. All the plaintiff has to say is “it wasn’t me” and the case goes all the way to a jury; and
2. Regular training on DNC rules is necessary to assure the availability of the bona fide error defense–and if you have such training make sure your lawyers do their job and explain that to the court!

Also folks Law Conference of Champions V tickets are on sale and prices are rising daily. If you don’t have your tickets yet you’re just going to end up paying more later! So get in now!

Much love.