I love it when a court really digs deep and answers questions in a case that I can help use to guide others.

So everyone’s favorite TCPAWorld denizen (and repeat TCPA ligator) Mark Dobronski recently brought a 13 count TCPA/Michigan state marketing law complaint against 17 different defendants. Eesh.

Here is a list of everyone he sued in one case:

FAMILY FIRST LIFE, LLC; UNITED OF OMAHA LIFE INSURANCE COMPANY; AMERICO FINANCIAL LIFE AND ANNUITY INSURANCE COMPANY; GREAT WESTERN INSURANCE COMPANY; YOUR SENIOR CARE INC.; KHONSAVAN VONGDARA; LEWIS JAN FRIEDMAN a/k/a LUKE FRIEDMAN; SHANNON ADAMS a/k/a CLAUDIA SHANNON ADAMS; DONTE C. GRANT; OLIVIA PEREZ; VANINA E. BONANNO; VANESSA ISABEL POWELL; EMMANUEL CHIBUZOR IGWEH; DARIO JOSEPH WICKHAM; BLAKE HUNTER SCHEIFELE; PAUL RYAN CHRISTLE; and GRETCHEN LOUISE DROUHARD

Gees.

His claims included those under the TCPA, the Michigan Telephone Companies as Common Carriers Act (MTCCCA), the Michigan Home Solicitation Sales Act (MHSSA) and the Michigan Consumer Protection Act (MCPA).

Joy.

All thirteen Defendants moved to dismiss in six separate motions.

You see where this is headed.

At bottom, Dobronski alleges Family First is an IMO that supplies leads and autodialers to its agents who use overseas call centers to call consumers to sell the products of United, Americo, and Great Western. The individuals (Vongdara, Adams, Grant, Perez, Bonanno, Powell, Igweh, and Wickham) allegedly bought leads, sent them to overseas call centers, and sold policies to the insurers.

Dobronski sues just about everyone for just about every call, which lead to some of his claims being dismissed. But a number of the claims stood as to the non-insurance companies. So its worth looking at.

Let’s break this all down.

First, the court finds Dobronski has standing to sue for calls he did not invite even though he sues all the time. The Insurance company defendants brought a pretty bad Article III challenge contending that Dobronski lacks standing to sue because he was not harmed by the calls. That argument was swiftly rejected as was there attempt to leverage Stoops at the pleadings stage–please stop doing that. Just because a Plaintiff has sued many times in the past does NOT mean he lacks standing to sue, per se. Instead a Plaintiff only lacks standing where he or she takes steps to MANUFACTURE the claim. On that note…

Second, the court finds Dobronski CANNOT sue for calls he DID invite. The Court issued a very helpful ruling clarifying that calls resulting from Dobronski expressing interest in the Defendants’ goods and services were not actionable. In the Court’s view Dobronski’s “implied consent” to those calls destroyed his claim for Article III and statutory standing, even if that consent did not afford a defense to the TCPA claim substantively. The court also determined his statements of interest likely formed an inquiry for DNC EBR purposes.

Third, the court finds the insurance companies cannot be held vicariously liable just because they knew about the scheme. Dobronski alleged the insurers new all about what Family First was doing. But knowledge is not enough to amount to actual or implied authority. Then again it WOULD be enough for ratification purposes but since Plaintiff never alleges he actually signed up for any policy with the Defendant insurers there could be no ratification.

Fourth, the court finds Family First and its agents COULD BE vicariously liable for the calls made by the overseas call centers. Important rule to keep in mind for folks on shore here. If you are sending leads to or buying leads from offshore call centers courts have no problem finding domestic companies vicariously liable for that conduct. In this case the court found Dobronski’s claims could proceed against FF and ALL of the individual agents.

Fifth, the court found the ATDS allegations survive dismissal. Apparently this court is not among those that believe ATDS claims are dead. Per the Court: “Dobronski has alleged multiple indicia of the calls that make his allegation of ATDS plausible. Dobronski states that the calls he received had “multi-second delays and/or a ‘boink’ or clicking sound … before a live telemarketer comes on the line,” that some calls were “simply dead air,” and that “the caller identification number display[ed] [was] ‘spoofed’ or manipulated to display a false telephone number.” That’s enough to allege an ATDS.

Sixth, the court finds a private right of action exists for premature hang up–but dismisses claim anyway. One of the most interesting parts of the ruling to my eye is the holding that 47 C.F.R. § 64.1200(a)(6) creates a private right of action. That provision prohibits “[d]isconnect[ing] an unanswered telemarketing call prior to at least 15 seconds or four (4) rings.” I spoke about this at the 2022 DNC TCPA Summit in Florida and noted I predicted litigation around these sorts of claims. This court confirms a private right of action does exist for such claims–one of the first in the country to so find. But since Dobronski does not allege who made those calls, the claim was dismissed.

Seventh, on the other hand the court finds no private right of action exists for the caller ID violation. CFR § 64.1601(e)(1) implements the Truth in Caller ID Act provisions of the TCPA. Nobody ever really talks about those. Why? Because there is no private right of action to enforce those provisions, as the court confirmed here.

Eighth, both state (M.C.L. § 445.111a(5)) and federal claims related to calls to numbers on the DNCR survive. Court found the claims against FF related to calls to his number on the DNC list survive under both state and federal law–that means he can double dip and collect twice as much for each call. Fun.

Ninth, the Court found state law (M.C.L. § 484.125(2)(a)) affords a direct claim for use of a prerecorded call without consent. Pretty sure this is the first court to recognize a separate private right of action under Michigan law on this point.

Tenth, the court dismissed the state carrier claims as they only apply to intrastate calls. M.C.L. § 484.125(2)(b) of the MTCCCA prohibits callers from s from delivering “intrastate commercial advertising if the caller activates a feature to block the display of caller identification information that would otherwise be available to the subscriber.” But since all of the calls allegedly arose from overseas call centers none of them were “intrastate.”

Eesh, that was a lot. Appreciate the hard work the court put into this thoughtful analysis. The case is Dobronski v. Family Firs Life, et al. 2024 WL 575858 Case No. 2:22-cv-12039 (ED. Mich. Jan. 19, 2024).