Attention to Detail — and the Defense — Prevails in Two Recent Cases

Two recent decisions emphasize the necessity of precisely examining a plaintiff’s complaint for potential defenses while keeping each element of the TCPA in mind.

First, in Hulce v. Zipongo, Inc., No. 23-C-0159, 2024 WL 1251108 (E.D. Wis. Mar. 18, 2024), the United States District Court for the Eastern District of Wisconsin granted the defendant’s motion for summary judgment, finding that an unsolicited advertising call must “encourage the purchase of any good or service.” Id. at *6 (emphasis added). The defendant’s services at issue, however, were being offered for free. Specifically, the defendant contracted with the Wisconsin Medicaid program to provide free nutritional consulting to state-funded plan holders. Defendant promoted its free services via calls and texts and would bill the state a fee “per eligible member per month, whether or not the member utilized [defendant]’s services.” Id. at *1. Plaintiff, a state-funded health plan user, sued defendant for approximately 20 calls and texts he received promoting defendant’s services. Id. Defendant moved for summary judgment on the grounds that, notwithstanding plaintiff’s advertising allegations, the calls and texts were distinct; they were not actually solicitations because they promoted a free service—at least to the plan holders. The court agreed and ruled in favor of the defendant.

Next, in Tuso v. Lennar Corp., No. 23-cv-22264, 2024 WL 1239474 (S.D. Fla. Mar. 22, 2024), the Southern District of Florida granted defendant’s motion to dismiss because the plaintiff had “failed to allege that the Defendant is liable ––either directly or vicariously.” Id. at *4. Rather, the plaintiff’s allegations actually attributed the calls at issue to a different entity. Plaintiff had sued after receiving two unsolicited calls from a person trying to sell him property. Defendant moved to dismiss because the calls were made by “Lennar Sales”—but not the actual defendant, Lennar Corporation. Thus, a close review of the allegations confirmed that plaintiff had failed to allege either direct or vicarious liability. Id. at *2. On the question of direct liability, the court found plaintiff failed to contest (and thus conceded) defendant’s assertion that the caller was an employee of a different entity. Id. at *3. With regard to vicarious liability, the court similarly found plaintiff’s complaint lacked “any allegation that would allow [the court] to infer an agency relationship between [d]efendant” and any other entity. Id.

These two cases illustrate the need to closely scrutinize a plaintiff’s complaint and theory of liability. While this is generally true in every case, it is particularly important when a complaint is framed a certain way, such as when it characterizes the action as an advertising case or assumes the calls at issue came from the defendant. Through a careful investigation of the allegations, a defendant may be able to uncover meritorious defenses.

Matthew J. Adler

About the Author: Matthew J. Adler

Matthew Adler is a trusted advocate and counselor who litigates complex commercial disputes and putative class actions for companies in the retail, technology, insurance, automotive, construction and telecommunications industries. He is known to be a persuasive writer and even-keeled problem-solver who provides practical, cost-effective solutions for his clients. Matt has defended numerous class actions, in state and federal court, involving claims of false advertising, fraud, breach of contract, breach of warranty and alleged violations of the Telephone Consumer Protection Act (TCPA) and of California’s consumer protection statutes, the Unfair Competition Law (UCL), the False Advertising Law (FAL), and the Consumers Legal Remedies Act (CLRA).

Andrew C. Scarafile

About the Author: Andrew C. Scarafile

Andrew Scarafile counsels clients in litigation and dispute resolution. As a summer associate for the firm, he assisted the litigation team in a variety of disputes, conducted legal research, and drafted motions. Before joining the firm as a summer associate, Andrew served as a legal extern at the U.S. Department of Justice.

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