TCPA: How to get at the Seller through the Telemarketer - Federal court shows the way

Most telemarketing calls are initiated by a Telemarketer, defined in 47 CFR § 64.1200(f)(12) the person or entity that initiates a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person. Most Telemarketers are initiating these calls for a third party, a Seller defined in 47 CFR § 64.1200(f)(10) as the person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.

Because most Telemarketers are hiding overseas to evade lawsuits, we are usually left with suing to hold the US-based seller accountable under the principal that the Seller is responsible for the Telemarketer's actions. That's not always as easy as it looks, so every time a Court provides a roadmap we should have a look. Today's lesson is from Traylor v. LiveFree Emergency Response, 2024 WL 4943042 (D. Mass. Dec. 3, 2024.)

TRAYLOR v LIVEFREE EMERGENCY RESPONSE.pdf

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Traylor, a resident of Massachusetts, alleged violations of the Telephone Consumer Protection act as the recipient of robocalls from Q Synergy on behalf of LiveFree residing in Idaho. Sued outside its domicile and state of registration, LiveFree moved to dismiss under FRCP 12(b)(2) - lack of jurisdiction. The Court gave a nice summary of the plaintiff's burden:

When a defendant challenges personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction exists. See Cossart v. United Excel Corp., 804 F.3d 13, 18 (1st Cir. 2015). Where the court considers a Rule 12(b)(2) motion without holding an evidentiary hearing, it applies the “prima facie standard.” See Sawtelle v. Farrell, 70 F.3d 1381, 1386 n.1 (1st Cir. 1995).3 To make a prima facie showing of jurisdiction, a plaintiff cannot rest on the pleadings but must “proffer[] evidence that, if credited, is enough to support findings of all facts essential to personal jurisdiction.” Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir. 1992). However, “the district court is not acting as a factfinder; rather, it accepts properly supported proffers of evidence by a plaintiff as true and makes its ruling as a matter of law.” United Elec. Radio and Mach. Workers of America (UE) v. 163 Pleasant St. Corp., 987 F.2d 39, 44 (1st Cir. 1993).

The Court is saying Traylor must proffer (show existence of) evidence sufficient to support personal jurisdiction.

LiveFree's business setup is typical of many telemarketing operations.

LiveFree gives Dealers a license to market and sell its devices using LiveFree’s trademark but prohibits Dealers from holding themselves out as LiveFree or LifeBeacon . . . Upon making a sale, Dealers pay LiveFree on a per unit basis for the product, order fulfillment, product support, payment processing, and device monitoring, and LiveFree ships the product and provides the product support and device monitoring to the customer who made the purchase . . . When customers use LiveFree’s payment processing, LiveFree remits the (excess) funds derived from the sale of devices and services to Dealers with LiveFree retaining a processing fee.

Traylor was able to marshal some facts.

In May 2020, on another call from what appeared to be a Massachusetts area code, Traylor stayed on the line to speak with a live agent and was eventually connected with a live person who identified herself as Tina . . . LiveFree has an employee named Tina Taresh who works with Dealers . . . Traylor wrote to LiveFree and advised it that the robocalls being placed were unwanted . . . On March 31, 2022, Traylor purchased the product being sold . . . The charge on his credit card appeared as “Wireless Medical Alert[,] Pocatello, Idaho.” . . . When the package arrived at his home in Massachusetts, its shipping label listed the return address as “Q Synergy, 3411 Hawthorne Road Pocatello, Idaho 83201 [LiveFree's address]

The Court used these facts to find that Q Synergy was LiveFree's agent and the Massachusetts court had personal jurisdiction over LiveFree.

Traylor alleges that Q Synergy acted as LiveFree’s agent and that both Q Synergy’s actions on behalf of LiveFree and LiveFree’s own actions are sufficient to justify personal jurisdiction over LiveFree . . . LiveFree counters that Q Synergy is a third party acting unilaterally and its actions cannot form the basis of personal jurisdiction over LiveFree . . . LiveFree also points out that it precludes its Dealers from acting as its agents

The evidence that militates in favor of an agency relationship is: (1) the product marketed to Traylor by Q Synergy was produced and shipped by LiveFree; (2) on one call from Q Synergy, Traylor was provided a number which connected him to a LiveFree dealer support agent; (3) when Traylor purchased the LifeBeacon monitor, LiveFree both charged him for and mailed him the device; (4) the package with the device sent to Traylor had Q Synergy’s name, but LiveFree’s address, as the return address; and (5) Q Synergy’s “purchase” of products did not occur until the sale was made to customers. The court finds these facts sufficient to support an agency relationship for purposes of the jurisdictional inquiry.

The Court went on to give some Easter Eggs you might think about quoting if you find yourself in Traylor's situation:

Additionally, finding an agency relationship between Q Synergy and LiveFree at this stage of litigation comports with the language and purpose of the TCPA. The FCC has ruled that “a company on whose behalf a telephone solicitation is made bears the responsibility for any violation of our telemarketing rules and calls placed by a third party on behalf of that company are treated as if the company itself placed the call,”. . . The FCC was clear that “allowing [a] seller to avoid potential liability by outsourcing its telemarketing activities to unsupervised third parties would leave consumers in many cases without an effective remedy for telemarketing intrusions.”

Traylor didn't end up needing it, but he had the fact that he wrote to LiveFree and advised it that the robocalls being placed were unwanted to make a an argument that LiveFree ratified Q Synergy's calls by being on notice of them and doing nothing to stop them. Or perhaps he did make that argument and the Court ignored it as unnecessary considering the other factors.

I am updating the post with a new caseTCPA Ortega v. Ditommaso 2025 WL 440278 (W.D. Tx. Feb 6, 2025) which gives a new angle to attack the Seller. The reality with many sellers is that without illegal calls, they would not have any business at all and Ortega exploited that fact in his pleadings with good effect:

In addition, Ortega alleges DiTommaso’s business model demonstrates a reliance on telemarketing and DiTommaso engaged in a business relationship with Meridian for the purpose of generating sales leads through telemarketing. Id. at 7–8. Specifically, Ortega alleges DiTommaso outsourced its telemarketing efforts to Meridian and accepted the benefits by taking live transfers of sales leads. Id. at 8. “By having Meridian initiate the calls on its behalf to generate new business,” Ortega further alleges, “DiTommaso [‘]manifest[ed] assent to another person . . . that the agent shall act on the principal’s behalf and subject to the principal’s control[’] as described in the Restatement (Third) of Agency.” Id. at 8.

Ortega v Ditommaso Inc.pdf

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I think TCPA plaintiffs should make this argument in all applicable lawsuits.

I am updating this post with a new case Saunders v. Dyck-O’Neal, 2025 WL 553292 (W.D. Mich Feb 19, 2025). In this lawsuit, a debt collector Dyck O'Neal contracted with a Telemarketer VoApp to leave prerecorded "direct drop" voicemails a/k/a ringless voicemails. By the way, if you ever wondered how they send "ringless" voicemails, one method is to call your phone number, and quickly after initiate another call. Since your phone number is busy taking the first call, the second call is directed to voicemail, at which point they hang up the first call. This happens so quickly your phone typically does not actually ring.

But at any rate, Dyck wanted out of this lawsuit and it argued that VoApp was the caller, not Dyck, and so the claims against Dyck should be terminated. Dyck O’Neal argues that it cannot be held directly liable because it did not send the messages, and any involvement was limited to performing clerical functions. Dyck O’Neal further argues that it is not vicariously liable for VoApps’ calls. The opinion touched on a number of topics relevant to TCPA lawsuits.

Dkt 306 Saunders v Dyck-O'Neal.pdf

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As we look at this case, note some findings by the court that will play into the results:

To complete the direct drop voicemails, Dyck O’Neal provided VoApps with (1) the telephone number to be contacted, (2) the day and time the voicemails were sent, and (3) the caller ID number to be used. Dyck O’Neal also selected the message to be played.

First Dyck O’Neal lost on its challenge to Direct Liability because it prepared the list of phone numbers, determined the prerecorded message, and controlled when the calls were made . . . Dyck O’Neal maintained complete control and total involvement over the calls.

Dyck also tried ducking its vicarious liability, starting with actual authority, using a favorite tool of sellers and telemarketers. Sellers and [offshore in particular] Telemarketers like to use contracts that disclaim any agency relationships and supposedly require the Telemarketer to obey all telemarketing laws.

Dyck O’Neal argues that that it did not control the calls because (1) its instructions to VoApps were minimal, and (2) the contract with VoApps disclaimed any agency relationship. Specifically, Dyck O’Neal contends that it did not authorize VoApps to make any calls in violation of the TCPA.

This contract nonsense didn't help Dyck, but it might have have helped VoApp if they had still been in the case [I don't know if they settled early or why they were not in the case].

The contract is not dispositive. See ABS Indus, Inc. v. Fifth Third Bank, 333 F. App’x 994, 1000 (6th Cir. 2009) (“[w]hether a relationship is characterized as agency in an agreement between parties or in the context of industry or popular usage is not controlling.”) (quoting Restatement (Third) of Agency § 1.02); Krakauer v. Dish Network, LLC, 925 F.3d 643, 661 (4th Cir. 2019) (“At no time, however, have we suggested that a contractual disclaimer was alone dispositive.”). More importantly, Dyck O’Neal’s involvement was not minimal. It decided what phone numbers would be called. It decided what prerecorded voicemail messages would be played. It uploaded a “campaign” each day, on the day it wanted calls to be made. It had the message it wanted played during calls recorded and designed the prerecorded message and caller ID to conform to its debt collection purpose. It had alleged debtors’ addresses and directed VoApps to send messages only during permissible time of day, depending upon the physical location of the debtor. By the terms of the contract, VoApps acted as a “passive conduit for the distribution of content and information.”

Theories of vicarious liability are complex, so a quick review of apparent authority:

“[U]nder the theory of apparent authority, a principal will incur liability for the acts of an ‘agent’ if the principal ‘held the agent out to third parties as possessing sufficient authority to commit the particular act in question, and there was reliance upon the apparent authority.’ . . . “Apparent authority exists when (1) the principal manifests that another is the principal’s agent, and (2) it is reasonable for a third person dealing with the agent to believe the agent is authorized to act for the principal.””

Dyck made a specifically weird argument that there was no apparent agency because VoApps did not have access to Dyck's system [whatever that means, I didn't pull the briefing] but it ignored the obvious:

any reasonable person who received a debt collection prerecorded message that said it was “DyckO’Neal with a message” would reasonably rely upon such an assertion and believe that the message came from Dyck-O’Neal.

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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