December 11, 2019

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December 09, 2019

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SDOH Judge Denies Defendant’s ‘Artful’ Motion to Dismiss, Finds Pressing 1 Does Not Convert a Pre-Recorded Message to an Incoming Call

On Monday, Defendant LE Energy hoped to pull a rabbit out of their trick hat by arguing that Plaintiff made an incoming call to their call center, simply by pressing ‘1’ in response to their pre-recorded message (and thereby circumventing the TCPA because Plaintiff would be deemed to initiate the call to them).  Unfortunately for LE Energy, Magistrate Judge Sarah Morrison wouldn’t buy into their illusion.  Charvat v. Le Energy, Case No. 2:19-cv-1325, 2019 U.S. Dist. LEXIS 139601 (S.D. Oh. Aug. 19, 2019).

In Charvat, Plaintiff claimed that an unknown entity placed a telemarketing call to his residential phone number.  Plaintiff alleges that he could not discern the caller from the pre-recorded message, and only upon clicking “1” was he transferred to a live person.  This live person, working from a call center, relayed that the caller was “Utility Gas & Power” (a registered trade name of Defendant LE Energy) and then attempted to pitch Defendant’s goods and services.

Defendant moved to dismiss Plaintiff’s complaint on the basis that Plaintiff, as soon as he pressed “1” magically transformed the prerecorded message into an incoming call to the call center, where the Defendant’s representative answered the line.

Magistrate Judge Morrison held, rightfully so, “If such action by a consumer transformed the nature of the call into something other than a call initiated to that individual, companies could completely avoid the prohibitions of the TCPA by leaving out any identifying information in a pre-recorded message in the initiating call and then putting the onus on the consumer to ‘press’ a number to speak with a live person.”  Id. at *8.

There’s nothing magical about legislative intent.

Defendant also moved on the grounds that Plaintiff failed to properly plead vicarious liability.  However, Plaintiff sufficiently alleged Utility Gas & Power placed the call, Utility is a registered trade name of Defendant’s, and therefore Defendant is responsible for initiating the call to Plaintiff.

It was a dead crowd for LE Energy and their attorneys tonight. 

Thankfully, the show must go on.  In Charvat, we are reminded that the TCPA is a consumer-protection statute.  A defense that lacks simple logic (or one that requires Houdini’s lock pick) will not succeed.


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About this Author

Alexandra Petrillo Associate SPB Ohio Litigation

Alexandra M. Petrillo’s practice focuses on complex and general litigation matters. 

Prior to joining Squire Patton Boggs, she worked as a litigation associate, staff attorney and law clerk in two regional law firms. She also served legal externships and internships with OhioHealth Corporation, CrossChx, Inc. and the Franklin County Prosecutor’s Office.