Don't make these pleading mistakes on liability in your TCPA lawsuit - and what to do if you did

TCPA lawsuits are one of the more difficult areas to litigate. They typically run a wide range of legal issues, none less complex then because usually the Telemarketer and the Seller are different folks. This causes no end of troubles for many plaintiffs, even those represented by attorneys.

Such was the case in Woodward v. Humana Inc., 1:23-cv-00979, (N.D. Ill. Mar. 29, 2024). The plaintiff received three unwanted phone calls promoting Humana insurance, and in one of the calls transferring Woodward to someone claiming to be a Humana employee.

Woodward sued Humana under the Telephone Consumer Protection Act, alleging that by engaging Healthhubb to make calls on its behalf to generate new business, Humana “manifested] assent to another person . . . that the agent shall act on the principal's behalf and subject to the principal's control . . . Plaintiff further alleges Humana permitted Healthubb the ability “to enter consumer information into the seller's sales or customer systems” when it permitted Healthubb to transfer Plaintiff s call over to Humana."

Humana challenged jurisdiction with a high risk, high reward declaration:

that it does not have and has never had a marketing relationship with Healthubb. Humana further alleges that they have never paid any money to Healthubb for customer leads or call transfers and that Healthubb is not authorized to promote or otherwise sell Humana products. Humana alleges that when Healthubb supposedly called Plaintiff, it did not do so at Humana's behest. Humana states that because they have no marketing relationship with Healthubb, Humana is neither involved with, nor does it exert any control over Healthubb's calling operations.

And this strategy leveraged the pleading mistakes Woodward's attorney made:

Plaintiff does not allege that Humana is directly liable for the calls at issue. Instead, Plaintiff asserts that this Court may exercise specific jurisdiction over Humana because Humana is vicariously liable for Healthubb's telemarketing calls under agency principles . . . Plaintiff briefly mentions but fails to argue actual and apparent authority as bases for vicarious liability. Thus, the Court's analysis will only address ratification.

As the court pointed out Ratification occurs when a principal knowingly chooses to accept the benefits arising from unauthorized actions taken by the agent on behalf of the principal. Woodward didn't trigger ratification by either purchasing a product on the call, or letting Humana know about the unwanted calls and Humana failing to act to prevent them. Woodward's attorney only plead the one theory of vicarious liability least likely to succeed.

This can happen because telemarketing lawsuits are complex and most attorneys don't understand the TCPA (not a knock on most attorneys, most attorneys don't know much about law they don't regularly practice because why would they), or some attorneys are very busy and don't put much effort into any particular case.

The court then put Woodard in check - and then checkmate.

Humana submitted a sworn declaration stating that it did not know of Healthubb's calling practices. Plaintiff fails to rebut Humana's declaration that it did not know and, therefore, did not ratify the conduct.

How was Woodward going to testify that Humana did know, and thus create a fact issue? The 'easy' route would be amend the complaint to include the much more viable vicarious liability claims but she could also swear out a declaration about the call ultimately transferred to the Humana employee because that's really all the facts she had tying the two together. Or maybe an independent investigation to tie the two together. Like maybe an investigation phone call or two back to Healthhubb seeing if they would connect her again to Humana. If Woodward could show Humana's testimony

it has never used Healthubb's services in a marketing campaign, paid Healthubb for leads or call transfers, authorized Healthubb to promote its products, or allowed Healthubb access to its systems or otherwise directly transfer calls to Humana agents.

was a lie it would kill Humana's credibility.

All is not lost for Woodward. The court gave her 30 days to cure the deficiencies and it appears she can. And of course she could file suit in Humana's state of incorporation or headquarters location and bounce over the jurisdictional hurdle. But making these silly mistakes does not inspire confidence in the attorneys that make them.

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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