Don't rely on conclusory allegations in your telemarketing lawsuit
- Peter Schneider
- Nov 11, 2024
- 3 min read
Updated: Feb 4
It is surprising how many attorneys write poor complaints that get rejected at the motion to dismiss stage. Here is another one and it cost the plaintiff in the case big. In telemarketing lawsuit Anderson v. Farmers Insurance, 2024 WL 4656218 (N.D.Ok. Nov. 1, 2024), plaintiff Anderson registered his phone number on the national do not call registry, and then he started receiving unwanted telemarketing calls. Four of them had the "exact same female voice" but no information as to the entity they were soliciting for. Then in a fifth call a "seemingly identical female voice" advised him she was calling from Farmers Insurance and he received an email sent from the farmersagency.com confirming it.
Anderson then file suit and as telemarketers are want to do, Farmers moved to dismiss and Anderson lost because “[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.”
To establish that the calls from these phone numbers were made by or on behalf of Farmers, Anderson speculates that the Farmers representative calling from 708-640-4850 had a “seemingly identical” female voice to the representative Anderson heard on prior calls. Id. at 9. However, the phone numbers associated with the unidentified callers do not match the phone number of the Farmers’ representative, and Anderson does not allege any facts supporting his assertion that the unidentified callers made the calls by or on behalf of Farmers on those occasions. Further, Anderson’s allegations demonstrating a connection between Farmers and its insurance agents do not suggest a connection between Farmers and the unidentified callers. Thus, Anderson’s allegations as to the calls from all of the phone numbers other than 708-640-4850 are merely conclusory.
What could Anderson have done differently? He should have fleshed out why the voices sounded identical. Did the woman caller sound the same age? The same accent? The same voice mannerisms? Was the calling 'script' the same between all the calls? If he called the same calling numbers back did he get the same result? Can he see if the phone carrier is the same between all the calling numbers? When he spoke with the Farmers agent would the Farmers agent admit that he received Anderson's phone number from a marketing company? Did the 708 calls continue, or stop after the last conversation?
Many judges don't like telemarketing lawsuits and those judges are more than willing to use a weakness like this to terminate it. Smart / diligent TCPA plaintiff attorneys include this cast of supporting facts to make the judge sweat a little about dismissing for fear of being successfully appealed.
Which brings up a second point. Smart TCPA plaintiffs go with firms with a reputation for appealing bad rulings. Most judges don't want to be appealed but if a law firm has a reputation for bending over and taking bad rulings the judge will have no fear in doing what he/she wants. Judges will usually treat lawyers with a reputation for success on appeal with a great deal more respect and care in their decision making.
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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