The Background: The defendant, MarketPro, is a real estate marketing and lead generation business based in Maryland. The plaintiffs registered their cell phone numbers with the Do Not Call Registry more than 14 years ago. Since 2021, however, the plaintiffs have received multiple text messages from “MPH” and “MPH of Rockville” or “MPH of PA” which the plaintiffs allege are all MarketPro. The messages offer to buy homes in any condition or as-is. The plaintiffs had no previous interaction with MarketPro and no interest in selling their home, according to the complaint.

• The defendant’s website indicates it buys homes while also offering ancillary services like cleaning, packing, moving, and title. The defendant then advertises the homes it acquires on a different site.
• The plaintiffs allege that the defendant sends text messages to homeowners without first obtaining their written consent. They accuse the defendant of violating the TCPA by soliciting subscribers to the Do Not Call registry and failing to provide the called party with the name of the person on whose behalf the calls were made.

The Ruling: The defendant argued that its messages were not telemarketing messages because they did not encourage the plaintiffs to purchase anything — instead they are trying to get the plaintiffs to sell something.

• At this stage of the proceedings, there are sufficient allegations to defeat a motion to dismiss, ruled Judge Stephanie A. Gallagher of the District Court for the District of Maryland.
• In discovery, the precise structure of the defendant’s business and the connection between its home purchases and the sale of associated services will come to light and only then will the judge be able to determine the defendant’s intentions, she ruled.

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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.