Getting them all - how to pull the seller the telemarketer is calling for into your local court for telemarketing violations

In telemarketing lingo the "seller" is the entity who is actually trying to sell you stuff, and the "telemarketer" is the entity actually ringing your phone. In a few cases they are one and the same but in most cases the telemarketer is sitting in India or Pakistan and the seller is often a "reputable" American company.

The telemarketer screens you to weed out the cranks or people who know how to pursue damages in court and then transfers the rest to the seller, who will almost never survey incoming clients if they consented to the call in the first place.

Our court system has increasingly been working to insulate the American seller from liability from the overseas caller. The way it usually works is the seller and the telemarketer draw up a contract, and in the contract the telemarketer promises to never violate telemarketing laws and the seller pretends to believe the foreign call center, paid based on leads or sales generated, would never think to place illegal calls.

So long as the American seller can pretend they have no idea about any illegal calls, many federal courts will hold that the seller can make money off the illegal calls but not be held accountable for them. This is illustrated in Callier v. Wide Merch. Inv., No. EP-22-CV-00123-FM, 13 (W.D. Tex. Apr. 27, 2023).

The plaintiff Callier sued the telemarketer Synergy, the seller WMI and the CEO of WMI, a Mr. Kim, in his home state of Texas. Mr. Kim and WMI were located in California and they moved to dismiss the lawsuit saying a Texas court did not have jurisdiction over them because they themselves didn't do business in Texas and otherwise didn't have minimum contacts in Texas even though after Synergy generated business for WMI in Texas, WMI sent the Texas customers contracts. The court made a common ruling, although WMI did a lot of business in Texas, the legal claims against WMI didn't involve calls WMI dialed into Texas.

The court, however, gave a roadmap of how to drag an entity like WMI into court.

"for WMI and Kim to be held vicariously liable under ratification they must have been aware of the actions of Synergy and did not object or repudiate the benefits" Callier.

In Aranda v. Caribbean Cruise Line, Inc., 179 F. Supp. 3d 817, 830 (N.D. Ill. 2016) "a party was held liable under ratification theory, because it knowingly accepted the benefits that flowed from the call campaign in the form of increased business. There is evidence that the party (Berkley) was aware of the call campaign, and that it violated the TCPA, but thought that it could drum up business. Yet there was no evidence that the party took any steps to ensure it would no longer receive leads generated through potentially unlawful calls."

What you can do to establish jurisdiction over a telemarketer

To have a good shot at dragging the seller into court, the court is going to look to see if you can show the seller knew about the calls. Once place to start is by looking for a bbb.org webpage for the seller. If there is, are there complaints that look exactly like yours? If so, did the seller respond (so you can show they knew or should have known about the illegal calls).

Another way to hook them is wait till the end of the call, and then ask the phone agent if they know the identity of the entity who transferred the call to the seller. They won't, but you can tell the agent that you have gotten a bunch of calls from the same telemarketer, you have asked them to stop calling, and they keep calling. Other ways might be a chat tool on the seller's website (tell them the same basic story and your phone number) or calling their phone agent.

If the telemarketer keeps calling you (and particularly if they keep transferring you to the same seller) you have a strong case for personal jurisdiction.

A risk is that the seller then blocks the telemarketer from transferring your phone number to your the seller, but doesn't cause the telemarketer to stop calling you. A way around that can be to ask the telemarketer to call your (clean) investigation phone number and see if the telemarketer will transfer that call to the seller.

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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