The consequences of simple mistakes in your TCPA telemarketing lawsuit
- Peter Schneider
- Apr 3, 2024
- 9 min read
Updated: Apr 14
This post isn't knocking anyone. Even seasoned attorneys can have a poorly written complaint, and often times it doesn't seem to matter, except when it does. Learn from the experiences of others. This is an example of a time when it did matter, and what can be learned from the failure.
In TCPA lawsuit Bank v. Alleviate Tax, LLC. Mr. Bank (pro se but a licensed attorney) sued Alleviate for alleged violations of the Telephone Consumer Protection Act. Alleviate moved to dismiss citing missing elements in Bank's complaint. This blog has touched on things that should be in a complaint and the possible consequences of not having them, and the court's ruling on the motion touches on many of them.
Out of the gate, Mr. Bank's first mistake was not doubling down when Alleviate advertised they wanted a protracted fight. What does this mean? Compare Bank's complaint
with a different complaint against the same defendant. This second complaint is loaded with facts and details, something the judge will find lacking in the Banks complaint. Beyond just getting past the motion to dismiss/summary judgement stages, this sea of facts is useful because a defendant has to admit, deny, or claim the inability to admit or deny each fact.
Sure, each fact could be submitted as a request for admission (RFA) during discovery, but defendants feel there is more room to object to requests and certainly there is a lot more room to object to the number of requests that can be in a complaint.
If the following complaint was bare bones, and the plaintiff came back later with a separate RFA for each fact in this detailed complaint, the defendant would probably move for a a protection order and respond with tons of objections. A detailed complaint is a 'free' set of RFAs the defendant just has to deal with, and an early look at what the defendant is willing to admit to which can help direct your future discovery efforts.
This is the order dismissing the Banks lawsuit with prejudice.
Anyone experienced in lawsuits knew the opinion was going to go poorly for Banks because the judge listed a brief overview of his litigation history on the first page. Biased courts frequently tip their hand and future TCPA pro se plaintiffs in this court should go in knowing this judge doesn't like them, and write their papers accordingly. This doesn't mean future pro se TCPA plaintiff's can't succeed in this court, only that the court may try to tip the scales to the extent it can against them.
But on to the show. Banks alleged to have received three robocalls (calls starting with an artificial or prerecorded voice introduction) from Alleviate.
"Plaintiff pressed a button on his telephone during the first call he received, on or about June 23, that allegedly “transferred [him] to an employee of Alleviate named Jack Patnoe.” After receiving the second call on or about June 23, Plaintiff called the telephone number provided during the call and an alleged “employee of Alleviate came onto the line.”"
Although Banks alleged that he answer the phone and eventually an Alleviate employee got on the phone, and he called the phone number provided back and an employee of Alleviate got on the line, the court is setting up to dismiss the lawsuit because Banks didn't allege Alleviate initiated the calls (or had vicarious liability for their agent initiating the call).
This highlights a a common pro se logical error - state the facts of what happened and then belief the judge will assume the party named in the facts is the responsible party. Banks could have alleged Alleviate initiated the calls, or he could have alleged Alleviate hired someone to initiate the calls, or he could have alleged both, but he alleged neither.
"a plaintiff . . . must allege an agency relationship between the maker of the call, such as a marketing company, and the defendant. . . . The existence of some connections between the defendant and the maker of the call will not suffice . . . despite Plaintiff alleging that he was directly transferred to an Alleviate employee . . . his pleadings still shed no light on who initiated the offending call, which is necessary to allege direct liability under the TCPA . . . the FAC provides absolutely no factual basis for its assertion that the person who answered the call “was an employee of Alleviate.”6 Because there is even less of a nexus between Defendant and the second call as alleged in the FAC, Plaintiff has failed to adequately plead a TCPA violation for this call as well."
This shows the tension between investigating illegal calls and playing defensive TCPA ball. This court clearly wanted Banks to stay on the line with the Alleviate employee to get sufficient facts to tie the calls to Alleviate, which is why it is important for TCPA plaintiffs to point out they were investigating when defense attorneys claim that staying on the line to learn facts sufficient to satisfy the judge is evidence the plaintiff wanted the calls.
"Plaintiff neither alleges in the FAC nor argues in his papers a violation of the TCPA under a theory of vicarious liability. Nor could he. Plaintiff simply states in conclusory fashion that Jack Patnoe was an Alleviate employee. There are no other details of the call with Patnoe in the FAC, such as, for example, details about how Plaintiff was informed that the representative at the other end of line worked for Defendant, or further context regarding whether the initiator of the call contracted to sell Defendant’s services."
And frankly, Banks was lazy. A quick Google search ties Patnoe in as an Alleviate employee. We live in a digital age where finding evidence and connections online to support allegations in a lawsuit is really easy. Banks should have included this public LinkedIn profile showing Patnow was in a sales roll at Alleviate to support his lawsuit.
This court hammered Banks for lack of factual allegations in his complaint:
"This attempted sleight of hand is emblematic of Plaintiff’s FAC, throughout which Plaintiff simply asserts in conclusory, unsupported fashion that Alleviate was behind the alleged conduct. (See, e.g., FAC ¶ 20 (“Alleviate made, or caused to be made, a telephone call (‘Bank’s First Alleviate Call’).”), ¶ 23 (labeling first call message “Bank’s First Alleviate Call Message”), ¶¶ 32, 35, 45, 48 (asserting that second and third calls were made or caused to be made by “Alleviate” and labeling them and the related messages as such), ¶ 27 (alleging that Bank “was transferred to an employee of Alleviate named Jack Patnoe”), ¶ 42 (labeling the phone number provided during the second call as the “Alleviate Telephone Number”).) However, simply asserting a purported fact does not make it one, where there are no factual allegations to support the asserted conclusion."
It might seem like supporting allegations like calling numbers, dates, LinkedIn profiles, quoting exactly what the sales agent said, what exactly they were selling, prices, and a host of other possible details are minor, but those are the difference between the judge accepting your alleged facts as true and making mere conclusions. "Plaintiff has not included the caller ID of the originating number or provided any details about the three calls’ contents . . . the Court has not even been presented with details of the alleged conversation Plaintiff had with Jack Patnoe to determine that he was working at the direction of Defendant or that Defendant regularly used calling schemes to advertise its services".
Banks got hung up on another missing element
"Defendant points to the fact that there is no allegation that the residential land line on which Plaintiff received the three calls was listed on the national DNCR . . . This Court has unfortunately been at this very juncture before with Plaintiff. In Spark Energy, the Court dismissed Plaintiff’s DNCR claim where he similarly failed to allege that his residential telephone number was on the national DNCR."
Another common mistake is to allege the plaintiff's phone number is no the national do not call registry, but forget to allege that the plaintiff himself or herself registered it there. Some courts don't care about this detail, but this court clearly would have.
These results are not extreme outliers. See Rogers v. Assurance IQ, LLC, 2:21-cv-00823-TL, 9 (W.D. Wash. Mar. 27, 2023).
"Defendants argue that Plaintiffs have failed to allege: (1) that their phone numbers are used for residential purposes; and (2) that they placed their own numbers on the DNC list (as opposed to someone else placing their numbers on the list) . . . The Court agrees with Defendants. Again, this information is known to Plaintiffs without any discovery and should be simple to include. Plaintiffs chose to use the passive voice to allege that both Plaintiffs Rogers' and Thompson's phone numbers were “registered on the National Do Not Call Registry.” . . . However, the numbers could have been registered by previous owners of those numbers rather than by Plaintiffs themselves. Plaintiffs further chose to describe that the telephone numbers were for “personal use”, which does not necessarily equate with residential use. The statute invoked by Plaintiffs specifically applies to subscribers of “residential” phones. 47 U.S.C. § 227(c)(5). These are facts that are easily within the knowledge of Plaintiffs and can be pleaded to remove any doubt about whether Plaintiffs Rogers and Thompson actually registered their own numbers on the DNC list and whether those numbers are for residential use. While the Court construes all inferences in Plaintiffs' favor, the conclusory allegations simply require too many inferential leaps as currently drafted."
When making a TCPA complaint it is important use the language of the statute to draft the allegations. This plaintiff also failed to tie Assurance IQ into the alleged calls:
"As masters of their complaint, Plaintiffs merely pleaded that Boomsourcing “physically dialed” pre-recorded calls to Plaintiffs Rogers, Stevenson, Thompson, and Armiger (none of whom consented to receive those calls) on behalf of Assurance IQ. Plaintiffs have not pleaded that Boomsourcing was aware that Assurance IQ was using its platform to send pre-recorded calls in violation of the TCPA. See id. Though Plaintiffs contend in their response to Boomsourcing's motion that Defendants had a contract requiring Boomsourcing to physically place calls on behalf of Assurance IQ, they did not state so in the complaint. Even if it had been properly pleaded, the Court is not satisfied the existence of such a contract term alone would suffice to establish direct liability . . . Moreover, Plaintiffs have not pleaded any facts supporting their inference that Boomsourcing physically dialed the calls to four of the individual plaintiffs. A TCPA plaintiff must allege facts to support their belief that the defendant placed the calls at issue, such as “how the caller identified itself, the substance of the calls,” or other details revealing that the defendant actually took steps to place the calls."
Contrast this with the facts plead in this lawsuit. This is a fact filled complaint very difficult for a judge to dismiss because when the court writes "Plaintiffs have not pleaded any facts supporting their inference that Boomsourcing physically dialed the calls to four of the individual plaintiffs" the Rogers complaint omitted a lot of facts.
And finally, the Rogers complaint fell apart on vicarious liability "a TCPA complaint for vicarious liability should include allegations supporting the existence of an agency relationship . . . the plaintiff must show that the principal controlled the ‘manner and means' of the allegedly violating phone call".
"Defendant Assurance IQ claims that it cannot be held vicariously liable under the TCPA based on Plaintiffs' allegations. Plaintiffs counter that Boomsourcing contracts with Assurance IQ and that Assurance IQ required Boomsourcing to place the calls. But these allegations needed to be made in the complaint, and they were not. The sole reference in the Second Amended Complaint with regard to any contract is that "Boomsourcing contracted with Assurance in this District.” However, there is no information as to what was covered by the contract between Assurance and Boomsourcing or whether the contract required Boomsourcing to place pre-recorded calls. Nor does the complaint allege that Assurance IQ directed those vendors to call individuals on the DNC list."
Now you know more about the consequences of mistakes in a TCPA lawsuit. 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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