CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘#CommercialLiability’

District Court Dismisses Suit for Failure to Meet the Pleadings Requirements Under the U.S. Telephone Consumer Protection Act

Posted on: October 3rd, 2016

By: A. Ali Sabzevari

A federal judge recently dismissed a class action lawsuit accusing CrossCountry Mortgage, Inc. of contacting consumers nationwide with unsolicited calls, finding that plaintiffs did not clearly show the mortgage lender made the calls in dispute. Filed in May, the lawsuit alleged that CrossCountry contracted with Direct Source to conduct a telemarketing campaign to promote CrossCountry’s mortgages. The lawsuit alleged the defendants’ “overzealous marketing” included repeated, auto-dialed or “robo” calls to consumers’ cellphones without their consent.  The Judge dismissed claims that CrossCountry violated the U.S. Telephone Consumer Protection Act, 47 U.S.C.§ 227 et seq. (“TCPA”).

Passed in 1991 to limit nuisance phone calls, the TCPA bars automatically dialed calls to cell phones without permission.  Companies are not generally liable under the TCPA for calls made on their behalf by third-party telemarketers, but they can be liable if the telemarketer acted as their agent. Under FCC rules, a telemarketer may be an agent if it received a script from the company to use on calls or proprietary information about the company’s products or customers.

To state claim under 42 U.S.C. § 227(b), a complaint must allege that a defendant (1) made any call, (2) using any automatic telephone dialing system, (3) to any telephone number assigned to a pager service or cellular telephone service, (4) absent the prior express consent of the recipient.  To state a claim under § 227(c), moreover, a plaintiff must allege (1) receipt of more than one telephone call within any 12-month period (2) by or on behalf of the same entity (3) in violation of the regulations promulgated by the FCC.

The district court found that plaintiffs failed to allege that CrossCountry physically made or initiated the disputed calls or that Direct Source was acting as CrossCountry’s agent when it made calls.  Attorneys should be cognizant of the federal pleading requirements, especially in cases involving the TCPA, where a failure to plead with specificity could result in a quick dismissal of the lawsuit.

The case is Seri v. CrossCountry Mortgage, Inc. et al., U.S. District Court, Northern District of Ohio, Case No. 16-cv-01214-DAP (Sept. 28, 2016).