Another TCPA defendant gets away for not understanding how to build a case
- Peter Schneider
- Oct 15
- 6 min read
Our friend Eric Troutman derides #biglaw for blowing the chances of their clients. Funny enough, I see the same thing on the plaintiff's side.
And sometimes I can't tell if a person walked in with a bad case that couldn't be fixed, or if the lawyer they went to didn't know what was wrong and didn't help them fix it. Such is the situation with Johnson v. Charter, 5:20-cv-02056-LCB (N.D. Al. Sept. 26, 2025). All allegations are taken from the Order.
In this case, Ms. Johnson received dozens unwanted telemarketing calls purporting to be Charter despite her number being listed on the national do-not-call list. Ms. Johnson sued Charter, and learned in discovery that the actual callers were Pakistani and working for a company called Tranche.
Charter had allegedly done the usual wink wink nod nod with Tranche - write a contract prohibiting telephone solicitation while unofficially knowing and blessing off the the telephone solicitation. It appears that while Ms. Johnson using Charter's name, she never talked to Charter, and more so, that Ms. Johnson never tried making a purchase (where Charter charged her) or otherwise demonstrated that Tranche had the implied or inherent authority to make the calls. Nor did Ms. Johnson inform Charter about the unwanted calls to set the hook on them.
Instead Ms. Johnson was left trying to build a vicarious liability case against Charter without any of the evidence that would really move the needle. Similar plaintiffs need to know how this wink wink nod nod stuff works, and how to overcome it. In nearly all situations like this, there will be a written agreement between the Seller and the Telemarketer where the Telemarketer will professes to never break the law.
Tranche is a New York-based company operated from Pakistan. Tranche entered into Charter’s standard Reseller Marketing Agreement which, among other things, expressly prohibited outbound telemarketing: “Reseller is prohibited, directly or indirectly, from soliciting subscriptions for Charter Services via . . . outbound telemarketing, either live or recorded.” The Marketing Agreement also required Tranche to comply with all applicable laws, ordinances, rules, and regulations. On or about August 8, 2019, Tranche signed the Charter Communications Marketing Rules which reiterated Charter’s ban on outbound telemarketing: “The following sales tactics are prohibited: . . . Soliciting subscriptions for Charter Services, directly or indirectly, via . . . text messaging or outbound telemarketing, either live or recorded….”
The reality is that Charter is signing with a Pakistani call center. It doesn't matter if Tranche didn't tell Charter that they intended to make phone calls, any sophisticated actor like Charter knows or should know that if a Pakistani call center can make money with illegal calls, that is exactly what a Pakistani call center is going to do.
Anyone like Charter would only hire Pakistani call center because they want the Pakistani call center to make illegal calls. But these contracts have a fig leaf plaintiffs have to get past showing the relationship for what it really is. Now Charter did allow Tranche to use their name and trademarks, and gave them computer access:
The Marketing Agreement states that Charter will provide to Tranche training on the proper use of its marketing materials, and it grants Charter the right to inspect Tranche’s records relating to user information and to conduct semiannual compliance audits. The Marketing Agreement also prescribes specific language for Tranche’s employees to use when speaking with prospective customers and obligates Tranche to ensure that all promoted services are clearly branded with Charter’s trademarks, service marks, trade names, logos, and other insignia. In addition, Tranche was authorized to use Charter’s “Retail Portal,” which allows it to facilitate sales and schedule installations.
But what the court cared about was if Tranche was Charter’s agent under common law agency principles.
An agency relationship “is the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” . . . Charter argues that the undisputed evidence demonstrates that no agency relationship exists between itself and Tranche. Charter describes its relationship with Tranche as follows: The Marketing Agreement provides that Tranche is an independent contractor. Tranche controlled its own day-to-day operations, including any call center that was used in any aspect of its business. Charter did not provide Tranche with any office space, telephone equipment, or other equipment for Tranche to engage in its work. Charter did not control the days or hours of Tranche’s operations or supervise Tranche’s activities on a day-to-day basis. Tranche hired its own staff, and Charter could not hire or fire any of those individuals. Charter paid Tranche on a commission basis. . . . Charter did not have any access to Tranche’s records. Tranche only possessed access to a one-way external portal maintained by Charter that could be used to submit potential customers to Charter. Tranche did not have access to Charter’s subscriber records, billing systems, or other back-end systems. Nor did it have access to Charter’s consumer information or marketing database of potential customers. . . . Tranche did not market exclusively on behalf of Charter; it could (and it is Charter’s understanding that it did) attempt to facilitate sales for other industry participants or clients at the same time it was digitally marketing for Charter.
Again this is all fairly standard. An effective strategy with the legal system is to have Telemarketers calling for more than one Seller. However courts don't just look at what the text of the agreement.
Courts consider following factors in determining whether an actual agency relationship exists: “(1) direct evidence of the principal’s right to or actual exercise of control; (2) the method of payment for an agent’s services, whether by time or by the job; (3) whether or not the equipment necessary to perform the work is furnished by the principal; and (4) whether the principal had the right to fire the agent.” Wolf v. Celebrity Cruises, Inc., 683 F. App'x 786, 797 (11th Cir. 2017). According to Johnson, Charter had the ability to direct and control Tranche, provided equipment and materials to Tranche, and had the ability to bind Charter in contract. Therefore, Johnson says, Tranche was Charter’s agent.
The reality is when the court is doing this analysis you are probably losing the case. Sellers and Telemarketers know how this game is played, and courts are only too happy to aid and abet it. Ms. Johnson needed to engage the phone agent to see if a Charter employee would get on the phone to complete the sale (that doesn't seem to be how this operation was set up - in many operations a Telemarketer makes the calls and then looks to live transfer the call to the Seller, but this case suggests no Charter rep was ever going to get on the phone) or she needed to write a letter to Charter informing them about what she knew of the illegal calls and see if Charter did nothing, ratifying future illegal calls.
As an aside, another reason Ms. Johnson should have at some point engaged the phone agents is to figure out something in the Marketing Agreement:
“[n]either party shall have any right, power or authority to enter into any agreement of or on behalf of, or incur any obligation or liability of, or to otherwise bind,” the other party.
If true, what exactly were the Tranche phone reps going to do? Where they going to pass consumers to Charter for the charter phone reps to close the deal? It is hard to sell Charter's reoccurring monthly services if you can't bind Charter to a contract and a phone call would have quickly identified the reality of the situation.
Depending on where Ms. Johnson's attorney's got this case they should have helped her build a better one, or advised her she didn't have much of one (and maybe they did) but either way they put a lot of effort into a weak one and I hope you will learn something here that helps you do better.
Got a Case Like This?
If you’ve had similar problems 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.
Are telemarketers bothering you in Washington, Oregon, or Montana?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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