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Volume XIII, Number 156


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June 03, 2023

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DEFENSE WIN: Court Grants Motion to Dismiss due to Plaintiffs’ Failure to Plead Vicarious Liability

Hey TCPA World!  

March Madness has been, well, madddd! and the World Baseball Classic  was an amazing exhibition of persistence and skills!  

Speaking of skills, let’s discuss an interesting case about vicarious liability which led to a Defense Win!  

In Trevor Barnes, et al. v. SunPower Corporation, No. 22-CV-04299-TLT, 2023 WL 2593271 (N.D. Cal. Mar. 16, 2023), the Court granted Defendant’s Motion to Dismiss. We have two plaintiffs: Barnes and Brown. Barnes resides in California and Brown resides in Florida.  

Barnes alleges that his telephone number is on the DNC. He received the first call from Caller ID Number and a “later return call to that number to an entity that identified itself as Green Energy Solutions.” He expressed that he was not interested but received a second call. To determine the caller’s identity, Barnes played along and claims he spoke with an employee who identified herself as working for Defendant.  

Brown, on the other hand, does not allege that her number is on the DNC but does allege that she received a prerecorded phone call with a prerecorded message that stated if interested, press a number. Brown pressed the number and spoke with a representative who scheduled an appointment for Brown. Brown received a confirmation text with the Defendant’s email and Brown alleges that the ability of the caller to transfer her to the representative indicates that the caller either worked for Defendant or was authorized by Defendant.  

The Court found that Plaintiffs only made conclusory allegations that the Defendant was directly or vicariously involved in transmitting the calls and text and failed to plausibly allege a TCPA claim. WIN! 

Here, Barnes alleges that he received a call from a Caller ID Number but does not allege that the call originated directly from Defendant. While Barnes alleges that the return call came from Green Energy Solutions, he did not present any facts to allege a plausible inference that Defendant made the two alleged calls or that an agency relationship existed between Defendant and Green Energy Solutions.  

Similarly, Brown did not allege that the initial call originated from Defendant but instead alleges that she pressed a button and spoke with a representative who sent her a call back number and a confirmation text with the Defendant’s email. She also did not support a plausible inference that Defendant made the original call or that an agency relationship existed. In fact, Brown voluntarily pressed a button to speak with someone.  

The Court noted that “in determining whether vicarious liability may be imposed, the extent of control exercised by the principal is the essential ingredient.” citing Jones v. Royal Admin. Servs., 887 F.3d 443, 450 (9th Cir. 2008).  

What a great win for the Defense!  

Til next time, Countess! 

© 2023 Troutman FirmNational Law Review, Volume XIII, Number 82

About this Author

Jenniffer Cabrera Miami TCPA Attorney Troutman

Jenniffer Cabrera (two ns and two fs) is the Countess of the TCPAWorld and an Associate Attorney at the Miami office of Troutman Firm. As a former general counsel, Jenniffer has extensive experience in compliance for call centers, lead suppliers and direct to consumer marketers. Jenniffer brings a diverse litigation experience having worked as a Courtroom Deputy for Judge John R. Padova and as an Intern for Judge Nitza Quiñones-Alejandro of the United States District Court for the Eastern District of Pennsylvania. Jenniffer attended the Beasley School of Law at Temple...