DOBRONSKI shows how to sue a telemarketer and sellers of final expense for TCPA violations and get past motion to dismiss

Final expense insurance telemarketing calls are going crazy right now because they are very profitable for the sellers. Many people involved in the final expense insurance racket hire telemarketers to call Americans en masse, and if they get someone to answer the phone and not hang up, transfer the person through to some phone agent to sell a policy for a big company.

The final expense insurance telemarketing industry loves the calls and the sales from the calls, but layers defenses like using fake business names and spoofed telephone numbers to avoid TCPA exposure for the unwanted calls.

TCPA plaintiff Mark Dobronski received a number of these final expense robocalls and he is sued the entire vertical under the telephone consumer protection act for the unwanted calls.

Dkt 1 - Dobronski v Tobias & Associates.pdf

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Plaintiff Mark W. Dobronski brings this pro se consumer protection suit against Tobias & Associates, Inc., Michael Tobias, Robert Phillips, Jesse Ventura, Fidelity Life Association, and Great Western Insurance Company, alleging violations of the Telephone Consumer Protection Act

But first, a little background to get us up to speed.

Plaintiff alleges that Defendant Tobias & Associates (“T&A”) is an insurance distributor and “National Marketing Organization” (“NMO”). NMOs contract with insurance carriers (such as Defendants Fidelity Life Association (“Fidelity”) and Great Western Insurance Company (“GWIC”)) and employ agents to market and distribute insurance products to consumers. T&A, as an NMO, provides its agents with “telemarketing leads” . . . T&A receives a commission when its agents sell an insurance product and provides a commission to the agent who sold the product . . . These agents are “either employees or independent contractors.” . . . Agents may recruit other agents as part of the marketing scheme, and agents earn a commission for insurance products sold by the agents they recruited. Plaintiff alleges that the automatic telephone dialing services, which are utilized by T&A to initiate calls, consist of call centers believed to be located outside the United States . . . These call centers “hire individuals to act as lead generators,” and they ask consumers questions and determine if the consumer meets certain qualification criteria for the insurance products sold . . . If the consumer qualifies for the product, the lead generator will transfer the call to an agent, who then “attempt[s] to close the sale of the insurance product to the consumer.” . . . If the consumer does not qualify, the lead generator will hang up immediately, without warning . . . Plaintiff alleges that the lead generators “engage in deceptive and illegal techniques to solicit consumers” and to obfuscate their and their employers’ identity, such as using “a false or generic-sounding business name,” “manipulating the caller identification such that the caller cannot be easily identified or called back,” and “refusing to provide identifying information [] upon inquiry.” . . . He also alleges that lead generators deliberately call telephone numbers that appear on the National Do Not Call Registry (“DNC Registry”) . . . Plaintiff’s suit is related to thirteen phone calls he received between April 20, 2022 and February 2, 2023. For Calls 1-12, Plaintiff answered the phone, heard silence for approximately four to five seconds, and then heard the following pre-recorded voice message: Hello. This is James. I am with American Benefits on a recorded line. How are you doing today? [Delay.] Great! I am calling to inform you about a new low cost final expense insurance plan that’s going to cover a hundred percent of your final expenses. A pre-recorded voice then asked Plaintiff a variety of questions related to his qualification for the product, such as his age and zip code. If he passed this stage, presumably meaning he was pre-qualified for the product, he was transferred to a “senior verifier” who verified the prior responses and asked additional questions. However, during Calls 1-11, the calls would suddenly disconnect during the pre-qualifying or qualifying stage. Plaintiff alleges that he engaged in the pre-qualification and qualification process “in order to attempt to better identify the source behind the automated pre-recorded messages” and provided a fake name. When Plaintiff attempted to call back the number displayed on the Caller ID, “the telephone number was either disconnected or, on one occasion, was a private telephone number of an individual whose number was apparently falsely ‘spoofed’ by the caller.”

Mr. Dobronski passed the the pre-qualifying and qualifying stages on a 12th call and was transferred to a “Jesse Ventura” “with ‘The Enrollment Center” in Florida who solicited Mr. Dobronski for life insurance policies issued by Fidelity and GWIC. Fidelity ultimately sold Mr. Dobronski a policy, but Mr. Dobronski named both GWIC and Fidelity in the lawsuit.

Fidelity, GWIC, and T&A moved to dismiss the complaint. A quick aside - this was Mr. Dobronski's amended complaint. The court dismissed his original complaint but gave Mr. Dobronski the opportunity to amend to address the issues. The defendants again moved to dismiss the amended complaint. Their first argument was that Mr. Dobronski didn't sufficiently describe each defendant's role in the alleged unlawful conduct. The court rejected it. First, it is now clear that Plaintiff is bringing all counts against all Defendants. As the Court noted in the March 18, 2024 order, “[g]rouping the Defendants together in this manner is acceptable if there are sufficient facts alleged so that each Defendant has notice of what Plaintiff believes their role was in the described violations.”

Plaintiff’s amended complaint provides sufficient facts such that each Defendant has notice of what Plaintiff believes their role was in the described violations. Plaintiff alleges that T&A contracts with Fidelity and GWIC to sell their insurance products. T&A and Tobias (as the CEO of T&A) direct agents, including Phillips and Ventura, to sell these insurance products by using automatic telephone dialing services. These automatic telephone dialing services engage in unlawful activities, such as deliberately calling telephone numbers that appear on the DNC Registry. T&A, Tobias, and agents like Phillips and Ventura allegedly are aware that the services they use (or instruct others to use) engage in unlawful activity. Plaintiff states that Fidelity and GWIC are also aware of the “illegal tactics being used by their contracted call centers” and “support and facilitate” the activity by providing T&A with access to its systems and the authority to use their name and market their insurance products. Based on his amended complaint, Plaintiff seeks to hold all Defendants vicariously liable for the call centers’ and agents’ actions, and wants to hold Defendants liable for all calls and for all counts . . . As such, Plaintiff “outlined each defendant’s role in the violations he alleges”; therefore, “it is not problematic that Dobronski asserts each Count against all defendants.”

Dkt 63 - Dobronski v Tobias & Associates.pdf

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Their second attack was to argue the amended complaint “do[es] not plausibly allege calls 1-11 were made by or on behalf of Defendants.”

According to Defendants, the allegation [in Mr. Dobronski's amended complaint] that the twelve calls began with identical, prerecorded messages does not permit a reasonable inference that the same entities are responsible for all twelve calls . . . Plaintiff heard an identical, pre-recorded message from “James” at “American Benefits” at the beginning of Calls 1-12. During the course of Calls 1-11, he was suddenly disconnected from the call during the pre-qualifying or qualifying stage and was not able to learn additional identifying information . . . However, he was able to learn additional information during Call 12, and, based on the identical, pre-recorded message in all twelve calls, infers that all twelve calls come from or are related to Defendants and their agents.

The defendants took issue with the inference. The T&A Defendants argue that Plaintiff “fails to allege facts connecting any of the Defendants to the name of American Benefits” or to “those Caller ID numbers.” But the court wailed on the defendants:

the T&A Defendants do not explain why the identical pre-recorded messages are insufficient to connect all twelve calls. Further, the amended complaint explains that the “lead generators” working for automatic telephone dialing services often “manipulate the caller identification such that the caller cannot be easily identified or call back,” and use “a false or generic-sounding business name.” As such, Plaintiff pleads sufficient facts connecting Defendants to the “American Benefits” name and these caller IDs because of the identical, pre-recorded messages and his allegations that automatic telephone dialing services take steps to obscure their identity and the identity of their principals.

The defendants were done whining. Defendants also argue that Plaintiff’s allegations linking Calls 1-11 to Defendant insurance companies are not plausible. According to Fidelity and GWIC, “telemarketers easily could have recycled the messages and the generic-sounding names of the callers for different sellers.” In my local court this isn't a much of a problem.

“PillPack cites no authority to establish a call may only be “initiated” on behalf of one seller and the Court agrees with Williams that the fact that the Performance Media campaign calls may have been initiated on behalf of multiple sellers does not necessitate individualized inquiries or evidence.” Williams v. PillPack LLC, 3:19-cv-05282-DGE, 9-10 (W.D. Wash. Dec. 23, 2022)

Dobronski v. Tobias & Associates, Inc., No. 23-10331, 2025 WL 747867 (E.D. Mich. Mar. 7, 2025) has an Easter egg for judges in other courts who hate plaintiffs who play along to identify the telemarketers. GWIC states, almost in passing, “Plaintiff cannot hold GWIC or any other defendant liable for Call 13 [The call disconnected but Plaintiff received a call back a few minutes later and spoke to Ventura again, page 6] because he acknowledges consenting to the call.”

GWIC suggests that consent was given because Plaintiff “feigned interest in receiving” Call 13. GWIC does not explain why Plaintiff’s behavior would constitute consent pursuant to the TCPA. Plaintiff argues the TCPA requires “express consent,” not implied or presumed consent, and that he did not allege facts consistent with express consent regarding Call 13. Plaintiff contends that, even if he had consented, the caller was still required to make certain disclosures required by the TCPA . . . Pursuant to the TCPA’s implementing regulations, entities may not “initiate any telephone solicitation to[] [a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry of persons who do not wish to receive telephone solicitations that is maintained by the Federal Government.” 47 C.F.R. § 64.1200(c)(2). A person or entity making a telephone solicitation cannot be held liable for initiating a call to telephone number on the DNC Registry if “it has obtained the subscriber’s prior express invitation or permission,” evidenced by “a signed, written agreement,” or if the telemarketer has a personal relationship with the recipient of the call.

The primary way sellers try to evade liability for unwanted calls is to claim they are not responsible for the telemarketers initiating the calls and of course Tobias & Associates, Inc., Fidelity Life Association, and Great Western Insurance Company gave that argument a go.

The T&A Defendants argue that the amended complaint “lacks factual allegations concerning an agency relationship” and, as such, Plaintiff has failed to plead vicarious liability . . . Plaintiff’s amended complaint contains numerous allegations connecting the T&A Defendants with the alleged conduct, such as their knowledge of the unlawful actions, connections between the solicitation and these Defendants, and the benefits these Defendants received as a result . . . Plaintiff alleges that T&A knowingly provides its agents with “telemarketing leads” and access to automatic telephone dialing services, which call numbers generated via random number or sequential number generator and initiate calls without human involvement . . . T&A and Tobias allegedly promote the use of these automatic telephone dialing services to their agents and are aware that the services and the telemarketing activities its agents conduct are illegal and violate the TCPA . . . As such, the T&A Defendants’ arguments regarding vicarious liability are denied.

Fidelity gave it a go as well. Fidelity challenges Plaintiff’s amended complaint on the basis of vicarious liability.

According to Fidelity, Plaintiff has not pled actual authority because “[n]othing in the FAC supports the inference that Fidelity had the right to control the call centers’ conduct.” . . . Fidelity believes Plaintiff only alleges a contractual relationship between Fidelity (and other Defendants) and the call centers, and that the mere existence of a contract is not sufficient to demonstrate actual authority . . . Fidelity also argues that Plaintiff has not pled apparent authority because “the Court cannot reasonably infer . . . that Fidelity held the call centers out to Plaintiff as having the authority to engage in the conduct at issue.” . . . Additionally, Fidelity believes Plaintiff has not pled ratification because he did not allege that “Fidelity accepted any benefits as a result of the call centers’ calls to Plaintiff,” noting that “Plaintiff submitted a life insurance application to Fidelity in connection with the February 2nd call, but Fidelity cancelled the application immediately.” . . . Lastly, Fidelity argues that Plaintiff fails to allege that Fidelity “was aware of the call centers’ allegedly illegal activities.” Plaintiff sufficiently alleges vicarious liability as to Fidelity: the amended complaint describes Fidelity’s alleged support and facilitation of the “scheme” by “providing [] T&A and its Agents with access to [Fidelity’s] computer systems for pricing; the ability to enter data into [Fidelity’s] systems; the authority to use [Fidelity’s] trade name and trademark or service mark; and . . . the authority to market [Fidelity’s] insurance products.” Plaintiff was solicited for a Fidelity life insurance product by “Eric” with “GETMEHEALTHCARE.COM,” and, while on the phone with Eric, Plaintiff received an email from Fidelity on February 2, 2023, at 1:19 P.M. with a “copy of a Fidelity application for life insurance” that included his “canary trap” information and Tobias’ electronic signature. Plaintiff also received a letter on Fidelity letterhead, dated February 3, 2023, stating that the Fidelity product was issued to his “canary trap” name and providing payment instructions. At this stage of the case, these allegations are sufficient for a showing of apparent authority or ratification. Fidelity’s communications with Plaintiff – the February 2, 2023 1:19 P.M. email, which was sent while Plaintiff was on the phone with “Eric,” and the letter dated February 3, 2023 – could reasonably make a third-party believe that Fidelity’s agents (the callers) had authority to act on Fidelity’s behalf . . . Further, Fidelity allegedly “ratified the behavior by knowing about it and nonetheless sending applications or policies.” . . . As to Fidelity’s argument that Plaintiff fails to plead ratification because Fidelity “cancelled” his application after receiving it the Court first notes that Fidelity did not provide any citations or caselaw indicating that an application, in and of itself, cannot be considered a benefit under federal common-law ratification . . . As such, Plaintiff’s allegations are sufficient to allege apparent authority or ratification for Fidelity.

And finally, GWIC. Like Fidelity, GWIC argues that Plaintiff has not alleged vicarious liability. GWIC also contends that Plaintiff fails to allege ratification because he “does not allege any conduct by GWIC that would manifest assent in any allegedly illegal telemarketing activity” and because GWIC did not accept any benefits.

Plaintiff sufficiently alleges vicarious liability as to GWIC. Like Fidelity, he claims that GWIC is aware of the call centers’ illegal telemarketing activities and supports the “scheme” by providing T&A and its Agents with access to its computer systems, the ability to enter information into these systems, the authority to use GWIC’s name, and the authority to market GWIC’s products . . . Further, Plaintiff was “sold” a GWIC policy by Ventura and received an email from GWIC on February 2, 2023 at 1:09 P.M. while on the phone with “Eric” at “GETMEHEALTHCARE.COM.” This email included a GWIC application for life insurance with his “canary trap” information and a signature from Phillips, who was listed as an authorized GWIC agent. These allegations are sufficient for a showing of apparent authority or ratification at the motion to dismiss stage. GWIC communicated with Plaintiff through the February 2, 2023 1:09 P.M. email, which was sent while Plaintiff was on the phone with “Eric,” and this email could reasonably lead a third-party to believe that the caller had authority to act on behalf of GWIC. GWIC’s argument that ratification did not occur because it did not issue a policy or receive payment is not convincing. GWIC does not provide any citations indicating that their sending the application is not sufficient to be a “benefit” under federal common-law. As indicated in Family First Life, ratification can occur when a principal knew about the behavior but “nonetheless [sent] applications or policies.” As such, Plaintiff’s allegations are sufficient to allege apparent authority or ratification for GWIC.

Those with a similar telemarketing case should look closely at what facts Mr. Dobronski had and how he used them to build his case that nearly completely survived a motion to dismiss.

Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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