An unsolicited review of a TCPA complaint that was dismissed with leave to amend
- Peter Schneider
- Jan 2
- 5 min read
A lot of my blog is dedicated to how to plead vicarious liability and for good reason, many pro se TCPA plaintiffs don't do it correctly and get their complaints dismissed as in the recent example of Smith v. GetMeHealthCare, LLC, No. 5:25-cv-568-SPC-PRL, 2025 LX 657825 (M.D. Fla. Dec. 31, 2025).
This is an unsolicited review of the court's ruling and the complaint to show what changes might get past a motion to dismiss. First the background. As usual I have not knowledge of the facts of this case beyond the court papers which I take as true just for the sake of argument and illustration.
The background: Ms. Smith received 31 unwanted telemarketing calls between June 2 2025, and June 12 2025. On this last day she answered one and ended up purchasing a health care plan from a GetMeHealthcare LLC. She believes the callers were working for GetMeHealthcare all along and sued them for the unwanted calls. GetMeHealthcare moved to dismiss which the court granted with the explanation:
Defendants identify a fatal flaw in Plaintiff's TCPA allegations: despite a 28-page complaint, she only alleges that Defendants placed one call—the June 12 call. Otherwise, she makes merely conclusory allegations about the "logical bridge" to connect Defendants to the other 30 calls. She identifies 31 different originating Caller ID numbers, but she does not state facts connecting any of these calls to Defendants other than the June 12 call. In her response, Plaintiff argues that at this stage of the litigation, she need only plausibly allege the calls were made "by or on behalf of" Defendants. (Doc. 10 at 4). But even if this were true, she has not plausibly alleged any facts to show Defendants (or their third-party telemarketing vendor) made any of the other calls. As Defendants emphasize, Plaintiff only alleges, through an exhibit, that the calls are from "healthcare marketplace." She fails to allege facts regarding the caller(s)' identities, the content of the calls, offers presented, or any other facts beyond speculation. In short, no facts in the complaint connect Defendants to the other 30 calls. Because a single call is not actionable under the TCPA, her conclusory allegations are insufficient to state a claim.
I went to look for myself to see what the complaint alleged. The first think I notice is in my own opinion Ms. Smith did adequately plead direct and apparent authority for the 31st call - but not ratification - but where the complaint allowed the judge to to bat for GetMeHealthcare is there wasn't anything tying the 31 calls together. Here are specific allegations in the complaint:
11. Defendant Chad Sokoloff is President of GetMeHealthCare, residing in Florida. Plaintiff alleges Sokoloff exercised direct control over the company’s telemarketing practices and personally authorized, directed, or knowingly allowed the use of third-party vendors such as John Doe Callers. 12. Defendant Michael Hilf is CEO of GetMeHealthCare, residing in Florida. Plaintiff alleges Hilf had direct oversight of compliance obligations and knowingly permitted unlawful telemarketing practices to proceed. 13. Defendants John Doe Callers 1-10 are unidentified telemarketers and lead generators who placed or initiated the unlawful calls on behalf of GetMeHealthCare. 15. Between June 2 and June 12, 2025, Plaintiff received at least 31 unwanted telemarketing calls. 16. These calls came from multiple spoofed Caller IDs. When Plaintiff attempted to return these calls, the numbers were disconnected or invalid. 21. 0n June 12, 2025, Plaintiff answered a call that came in from a third-party telemarketing vendor hired by GetMeHealthCare. 22. The third-party agent qualified Plaintiff by asking her full name, phone number, address, date of birth, and whether she had insurance through the Marketplace. 23. After collecting this information, the agent transferred Plaintiff to Zach, an employee of GetMeHealthCare. 34. Actual Authority. GetMeHealthCare retained, paid, and directed third-party telemarketers to generate leads by outbound calling. The telemarketers used qualification scripts that mirrored the questions later repeated by GetMeHealthCare’s own employees (Zach and Britney). This demonstrates the calls were placed with GetMeHealthCare’s express authority and for its sole benefit. See Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 168 (2016). 35. Apparent Authority. To consumers, the telemarketers reasonably appeared to act on GetMeHealthCare’s behalf. The transfers flowed seamlessly from John Doe Callers to GetMeHealthCare’s in-house staff, and the enrollment culminated in documents branded with GetMeHealthCare’s name. Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1274 (11th Cir. 2019). 36. Ratification. Even if John Doe Callers exceeded the scope of their express authority, GetMeHealthCare ratified the conduct by knowingly accepting and processing leads generated by the illegal calls, completing enrollments through its employees Zach and Britney, and confirming the enrollment internally through employee Keyonna Grant. Ratification occurs when a principal accepts the benefits of an agent’s acts with knowledge of the material facts. Henderson v. United Student Aid Funds, Inc., 918 F.3d 1068, 1073-74 (9th Cir. 2019).
I would go back and add details on the 36 calls. Who did the callers say they were calling for? "Marketplace"? "Healthcare Benefits"? Where the names of the individual callers often the same? Was the sales script always the same or similar? I would allege all the facts possible showing the other 30 calls were similar to the last call that was connected to GetMeHealthcare such that same entity was responsible for placing all 31 calls. Something about at least some of the other calls should match up with the last call.
In my opinion ratification won't work on the first 30 calls because Ms. Smith can't really show GetMeHealthcare knew or should have known about the 30 unwanted calls when they sold her the insurance on the 31st call. What Ms. Smith could have done after the 31st call is write GetMeHealthcare a letter, tell them the story about the 31 calls, tell them she only purchased the policy to see who was behind the calls and that that she didn't want the policy beyond that, and then seen if GetMeHealthcare repudiated the contract (gave her the money back and canceled the policy) or if they went ahead and kept the money. Knowledge + keep the money = ratification.
Good luck on the amendment Ms. Smith!
Got a Case Like This?
If you’ve encountered similar issues with telemarketers, debt collectors, or bankruptcy-related harassment, we might feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
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Note: The opinions in this blog are mine (Peter Schneider) and do not constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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