The United States District Court for the Middle District of Pennsylvania recently held that a pro se plaintiff failed to plead facts sufficient to demonstrate that an agency relationship existed. This holding reinforced the need for specificity in Telephone Consumer Protection Act claims that allege vicarious liability.
In Robert D. Kline v. Elite Medical Laboratories, Inc., plaintiff Robert Kline claimed he received numerous unconsented calls to his personal cell phone that were placed by either an automatic telephone dialing system or robocall equipment. During these calls, the callers identified themselves as either a “Medicare department” or a “cancer screening center.”
Kline undertook an investigation to determine the true identity of these callers and, at some point, was mailed a cancer screening kit provided by defendants Elite Medical Laboratories, Inc. and Performance Laboratories, LLC. With respect to defendant Dr. Richard Arriviello, Kline claimed that the callers referenced a “doctor” several times during the calls, and he concluded that this doctor was Arriviello, but did not explain how he came to this conclusion.
Arriviello ultimately moved to dismiss the TCPA claims against him, arguing that Kline “failed to allege that moving defendant ever made an unsolicited robo call to him and has failed to allege any facts to support his allegations that the person who made the robo call to him was an agent of the moving defendant.”
The Court agreed with Arriviello, noting that Kline made no allegation that Arriviello directed the callers to call Kline on his behalf, or that Arriviello caused the callers to reasonably believe that they had the authority to call Kline on Arriviello’s behalf. Thus, the Court concluded that Kline had not alleged sufficient facts to show that the callers were agents of Arriviello.
Notably, courts have not hesitated to uphold large verdicts when companies engage third parties to place telemarketing calls. In May 2019, for example, the Fourth Circuit upheld a $61 million verdict in Krakauer v. Dish Network, LLC, where plaintiff Thomas Krakauer alleged he received telemarketing calls asking him to buy services from Dish Network. The calls were not from Dish Network directly, but from Dish Network’s vendor – Satellite Systems Network (“SSN”). The jury returned a verdict for Krakauer, finding that SSN acted as Dish Network’s agent when it made the calls, awarding $400 per call for 50,000 calls, which was then trebled. In the Kline case, however, the Middle District of Pennsylvania’s holding reinforced that it is not enough to vaguely plead vicarious liability, and highlighted the importance of pleading specifics when seeking to establish an agency relationship.