A District Court judge in Maryland has denied a defendant’s motion to dismiss a Telephone Consumer Protection Act class-action suit, ruling that the plaintiff has met the burden for stating a claim that seeks to hold the defendant vicariously liable for the acts of a third-party that made telemarketing calls on the defendant’s behalf.
A copy of the ruling in the case of Jones v. Mutual of Omaha Insurance Company can be accessed by clicking here.
The plaintiff, whose phone number is on the national Do Not Call registry, received a phone call that played a pre-recorded message seeking to qualify the plaintiff for the defendant’s products. Specifically, the plaintiff was asked to press the number ‘1’ if she was over the age of 50. The plaintiff pressed the number and was transferred to a representative who identified himself as an employee of the defendant. The plaintiff claims the party that actually placed the call was hired to promote the defendant’s products and that the defendant maintained control over the third party’s actions because “it had the ability to prohibit the third party from using prerecorded calls to contact potential customers.” As well, the defendant allegedly instructed the third party by “providing the volume of calling and leads it would purchase,” according to the complaint. The plaintiff claims the defendant is liable for the actions of the third party.
The defendant argued that the plaintiff failed to state a claim because she did not plausibly allege that the defendant is either directly or vicariously liable for the calls that were made. What matters, according to Judge Ellen L. Hollander of the District Court for the District of Maryland, is “whether plaintiff has adequately alleged facts sufficient to support a claim of vicarious liability.”
Because the plaintiff’s complaint includes specific allegations regarding the defendant’s “ability to control the third party’s telemarketing methods,” the plaintiff met the burden for stating her claim, ruled Judge Hollander. “… at this stage of the proceedings, [the plaintiff] need not demonstrate that Mutual of Omaha actually controlled the manner and means of the telemarketing campaign; rather, evidence of Mutual of Omaha’s ‘“‘’right to control’ the campaign will suffice’ ” Judge Hollander ruled.