The TCPA and agency law - this case has it all
- Peter Schneider
- 22 minutes ago
- 9 min read
Samual Katz is a long-time pro at the pro-se game and he demonstrated why in Katz v. Allied First Bank, No. 22 C 5277, 2026 LX 147306 (N.D. Ill. Mar. 6, 2026). He also had a great team, being represented by Mr Perrong and Mr. Peronich.
First, the background. I have no personal knowledge of the case outside of the papers and court opinions filed. I assume all facts in the case to be true to highlight the story but I have no knowledge of the absolute facts of the case.
It seems that Allied First Bank wanted more mortgage refinancing business, so they hired a Consumer Nsight to generate calls and transfer them to Allied's phone agents. Nsight itself wasn't a telemarketer, so it outsourced the phone work to a company called Iconic. Allied knew all about this, Nsight wasn't using Iconic behind Allied's back.
"everyone in the office knew that th[e] lead was coming from Iconic, and it would show that on the phone, and everybody knew it was a warm transfer coming from Iconic."
As telephone operations go it wasn't a particularly large one. Allied had 80 phone agents and Iconic transferred about about 950 calls over about a year's time. These days most Sellers have a hands off approach to their telemarketers but Allied as a little more old school:
Copies of internal Allied documents provide: that "[a]ll telemarketing activities engaged in by Bank employees shall be approved by a member of management," and have Allied's Compliance Officer approve the telephone script or outline; that managers are to "initially establish the existence, purpose and service provided by the vendor" and to vet the vendor, the vetting of which "will be reviewed by Allied . . . initially and on an annual basis"; and that Allied required its vendors be provided with Allied's internal Do Not Call List. Allied's Compliance Officer, Adam Skeffington, testified at his deposition that Allied sends the internal Do Not Call list to team managers, who are then required to send it to vendors, but that he was not aware of Mattson having sent the list to Consumer Nsight.
One source of Iconic's lead sources was website LenderConsultant.com, and supposedly a "James Weim" put his phone number in there and asked for mortgage calls. The phone number was Mr. Katz's number, and "James Weim" is apparently a moniker he uses with telemarketers.
Varma, Iconic's CEO, states in a declaration that Iconic called plaintiff at that number, which "had been provided in an inquiry form by a 'James Weim' at the webpage lenderconsultant.com." Plaintiff admitted at his deposition that he has used the alias "James Weim" in relation to telemarketing calls, and that his telephone number is the 1001 number. But he denies that he used this alias to complete any online form or that he submitted his information to lenderconsultant.com. According to plaintiff, he uses this alias only when responding to illegal telemarketing calls, not when submitting information online. Allied asserts that between January 12 and March 7, 2022, Iconic contacted "Mr. Weim" several times to discuss his interest in mortgage refinancing per the online inquiry. Allied further asserts that plaintiff finally answered the tenth call on March 7, 2022, stating that he was "James Weim" and confirming that he was interested in hearing mortgage rate offers. The phone-call transcript shows that the call was made by a woman who spoke with plaintiff and then transferred the call to an Allied loan officer named Jason Aldridge, who continued the call with plaintiff to discuss mortgage refinancing options. Plaintiff admits that he answered a call on March 7, 2022, and that he used the name "James Weim." But he denies that he confirmed that he was interested in hearing mortgage rate offers in any genuine sense, because, as he puts is, he was just "play[ing] along with that to the extent [he] needed to identify the party responsible for the illegal calls."
One of our long running blog themes is playing defensive ball and not getting caught up in a counter-claim. There is a time and place for deception in TCPA investigations but we would highly recommend you know the time and place for it before you engage in it. It seems Mr. Katz's use of "James Weim" didn't hurt him here, but see recent articles about Mr. Dobronski and another case were answering to the same fake name used in the fake lead was used against the TCPA plaintiff.
It helped Mr. Katz that even Allied was getting tired of Iconic's fake leads.
Mattson [a manager for Allid] or his team members were on communications with Consumer Nsight about returning leads, including, for example, for a combative person who was not interested, and for another person who "asked why [the caller] w[as] calling him and what [the caller] wanted" and who stated that he "was not interested because he wasn't even looking for anything." In April 2022, Mattson refused a delivery of transfers from Consumer Nsight, stating he was "done with transfers." And at some point, he spoke directly to Iconic about the warm-transfer-lead campaign and told Iconic that the leads were "not good" and that he "wasn't very happy about that." Mattson stated at deposition that Consumer Nsight and Iconic were "just shoving over some people that were not very interested."
The funny thing about this lawsuit is that Mr. Katz settled with Iconic and Nsight so they dropped out. Allied cross claimed Nsight for the bad leads but they MTD's out based on lack of jurisdiction, so Allied is in this thing all by themselves.
Supposedly this is about 10 phone calls so it isn't clear just how much Nsight and Iconic paid to get out.
Plaintiff has since settled his claims with Consumer Nsight and Iconic (who was not named as a defendant in this case). Plaintiff states in a declaration, though, that he has "not recovered [his] full measure of statutory damages from either of [them], including in the aggregate."
Allied moved for summary judgment on the lawsuit's sole claim, violations of § 227(c), and Allied pulled a bone headed more I've not seen since Barton v. Delfgauw, No. 3:21-cv-05610-DGE, 2025 LX 373885 (W.D. Wash. Aug. 18, 2025), a defendant claiming that only the use of an automatic telephone dialing system can violate § 227(c) and this signals that Allied hired dumb defense attorneys. Or at least the wrong ones.
Allied had problems deeper than dumb arguments. The consent for calls language on LenderConsultant.com apparently didn't include Allied and Allied didn't have evidence that anyone visited it, even a fake lead generator.
The purpose of the agreement—obtaining consent to be called—must be clear and conspicuous, identify the specific seller to whom the consent is being provided, and not be a condition for the person to make a purchase. The agreement should include the person's telephone number, and must include the person's signature. An electronic signature in accordance with the National Commerce ("E-SIGN") Act is sufficient.
Allied tried to wiggle off that because it didn't initiate the calls, they were not vicariously liable. they got one small win - direct liability - because everyone agreed Allied didn't directly place the calls, but none of their wiggling with vicarious liability got them out.
Allied asserts, "a seller may be [held] vicarious[ly] liab[le] for TCPA violations 'under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification.'" (Quoting Dish Network, 28 F.C.C. Rcd. at 6584). But here, Allied argues, no "actual or apparent agent . . . contacted [p]laintiff in violation of the TCPA," and Allied "did not ratify the alleged conduct of its agents who contacted [p]laintiff." actual authority (or "formal agency") focuses on the relationship between the principal and its agent (whether the principal controlled or had the right to control the agent's conduct); apparent authority focuses on the relationship between the principal and a third party (whether the principal's words or actions led a third party to reasonably believe that the principal consented to an action done on the principal's behalf by the agent); and ratification focuses on the principal's conduct after the act has occurred (whether the principal knowingly accepted the benefits of the agent's act or approved it after the fact).
Actual Authority
"Actual authority requires that at the time of an agent's conduct, 'the agent reasonably believes, in accordance with the principal's manifestations to the agent, that the principal wishes the agent so to act.'" Bilek, 8 F.4th at 587 (quoting RESTATEMENT (THIRD) OF AGENCY § 2.01 (2006)). Actual authority may be express or implied. Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 938-39 (7th Cir. 2016). "An agent has express actual authority when the principal expressly grants the agent the authority to perform a particular act." Aranda v. Caribbean Cruise Line, Inc., 179 F. Supp. 3d 817, 831 (N.D. Ill. 2016). "A principal grants implied actual authority to an agent when the principal's reasonably interpreted words or conduct would cause an agent to believe that the principal consents to have an act done on her behalf." Ultimately, to prove actual authority, plaintiff "must show evidence that (1) a principal/agent relationship exists, (2) the principal controlled or had the right to control the alleged agent's conduct, and (3) the alleged conduct fell within the scope of the agency." Bilek, 8 F.4th at 587.
I could quote a lengthy bit of the opinion as to why Allied lost out on its direct authority argument, but it boiled down to the substantial interaction between Allied, Nsight, and Iconic. They worked closely together and Allied knew how Nsight and Iconic were generating calls for them, and had quite a bit of control over both. This is why these days most Sellers are distancing themselves from having any knowledge of what their telemarketers are doing, which opens the door to other weaknesses you can exploit.
Apparent Authority
Allied contends that it did not take any actions that would instill in a third party, like plaintiff, a reasonable belief that Iconic had authority to act as Allied's agent.
But this is where warm transfers almost always come with apparent authority. These India and Pakistan callers always give the air that they are calling from the Seller, and Sellers never get on the line and disparage their Telemarketer. It works against them in court.
According to the phone-call transcript, Aldrige comes on the line stating, "Alright, thank you, this is Jason Aldrige," and the woman then greets Aldridge and tells plaintiff that he was "in excellent hands with Mr. Aldridge." A reasonable jury could infer that Aldridge's conduct in continuing the conversation could make plaintiff reasonably believe that Allied consented to Iconic calling him on Allied's behalf.
Ratification
Allied contends that "[t]here is absolutely no evidence . . . that Allied . . . ratified the conduct of Iconic." According to Allied, it had no knowledge of who conducted the call transfers or by what means Iconic placed the calls. And, Allied asserts, its "understanding [was] that consumers, like [p]laintiff, provided their information on an online web page to be contacted regarding mortgage refinancing options and that such form included a TCPA disclosure statement." It thus argues that Allied "had no reason to believe that Consumer Nsight violated the TCPA in effectuating these leads at the time it paid Consumer Nsight for its services and there is simply no evidence in the record to the contrary."
In my opinion ratification is a way underutilized theory of recovery. It often takes a little bit of work on the consumer's part, either on the call or after, and Mr. Katz got a little lucky here.
The issue here, then, is whether Allied had knowledge of facts that would have led a reasonable person to investigate further.
During discovery Mr. Katz was able to develop that Allied knew or should have known Iconic was illegally calling folks.
there is evidence that suggests that Allied had knowledge of facts that would have led a reasonable person to investigate further on this issue. Mattson stated at deposition, for example, that he wasn't happy with the quality of the leads, and that Consumer Nsight and Iconic were "just shoving over some people that were not very interested." And emails show that, weeks before the March 7, 2022 call to plaintiff, Mattson or his team members were on communications with Consumer Nsight about returning leads, including, for example, for a combative person who was not interested, and for another person who "asked why [the caller] w[as] calling him and what [the caller] wanted" and who stated that he "was not interested because he wasn't even looking for anything." Further, Allied's Chief Compliance Officer, Skeffington, testified that Allied has an internal do-not-call list, and that Allied sends the list to team managers, like Mattson, who are then required to send it to vendors, like Consumer Nsight. But Allied has not pointed to evidence that Mattson ever sent that list to Consumer Nsight.
It didn't take much to put Allied on the hook with ratification. Hopefully Mr. Katz can take it to the house at trial although this ruling will probably result in a favorable settlement.
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Note: The opinions in this blog are mine (Peter Schneider) and do not constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.