This month, in Charvat v. LE Energy, LLC, No. 2:19-cv-1325, 2019 WL 3891830 (S.D. Ohio Aug. 19, 2019), an Ohio district court judge denied a defendant’s motion to dismiss a plaintiff’s allegation of violation of the Telephone Consumer Protection Act when an unidentified entity placed a telemarketing call to the plaintiff’s residential phone number, and played a pre-recorded message, instructing the plaintiff to press “1” to qualify for long term savings. The plaintiff, Philip Charvat, pressed “1” and was transferred to a live person working from a call center, who worked for LE Energy, and attempted to sell goods and services to Charvat. LE Energy argued that Charvat’s claim should be dismissed because it was Charvat who called the call center by pressing “1” in response to the pre-recorded message.
The Court found LE Energy’s argument unconvincing and ruled that Charvat’s allegations were sufficient to raise a plausible inference that LE Energy was responsible for initiating the call to Charvat’s residential line. The Court explained that if pressing “1” transformed the nature of the pre-recorded call into something other than a call initiated to that individual, companies could completely avoid the TCPA’s prohibitions by leaving out any identifying information in a pre-recorded message in an initiating call and putting the burden on the consumer to “press” a number to speak with a live person.
The Court also rejected a second argument raised by LE Energy — that Charvat had failed to properly plead vicarious liability. The Court ruled that Charvat had alleged that one of LE Energy’s registered trade names placed the call and, therefore, LE Energy’s argument was without merit. The Court stated that acceptance of this argument “would effectively eviscerate the protections afforded by the TCPA” by circumventing its protections.
Charvat serves as an important reminder to defendants in TCPA lawsuits that the TCPA is a consumer protection statute, and defendants must be cautious in raising defenses that appear to attempt to circumvent the Act’s protections. Troutman Sanders will continue to monitor and report on important developments involving the TCPA.