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LAWSUIT GENERATION?: AccuQuote Stuck in TCPA Suit Over Prerecorded Calls Allegedly Made by Lead Generation Giant DMS and So the World Turns
Monday, June 17, 2024

Its Monday.

So that must mean another ruling in a TCPA case generated from third-party lead generation.

In Bryant v. Accuquote, 2024 WL 3012963 (M.D. Fl. June 14, 2024), Accuquote–a broker–was sued for calls made by Digital Media Solutions (DMS) and eventually sold to Mutual of Omaha.

While Mutual was sued originally it was able to extract itself from the suit. That just left Accuquote and DMS.

Now Accuquote will be quick to tell you it had no place in the suit. It did not make the call. And it was not the provider of the good or service the customer wanted, so there was no way the call was made ‘on its behalf.’ All it did was buy a call to re-sell it. Middle man.

But Plaintiff’s lawyers–particularly the Wolf–have been able to keep these middle-man TCPA suits alive, at least at the pleadings stage, and that is exactly what happened in Byrant.

Although AccuQuote moved to dismiss arguing it was not liable for the calls, the Court found otherwise based on the allegations of the complaint:

In his second amended complaint, Plaintiff alleges a contractual relationship between AccuQuote and DMS, with AccuQuote serving as the principal and DMS serving as its agent. Plaintiff asserts that AccuQuote exercised substantial control over DMS in a number of specified ways that could potentially support an agency relationship if true, including hiring DMS to make phone calls, paying DMS for phone calls, and providing and approving a script for phone calls. In addition, Plaintiff further alleges that AccuQuote learned that DMS was placing illegal phone calls but ratified the conduct by continuing to do business with DMS with knowledge of these facts and circumstances. At this stage of the proceedings, the Court is required to accept these facts as true, and these allegations are sufficient to plead a cause of action based on vicarious liability. The motion to dismiss is therefore denied as to this ground.

The bolded portion is particularly important. Allegations of “hiring” a company to make phone calls for you will certainly lead to a motion to dismiss being denied. If those allegations are not true–and they probably aren’t–the remedy is an early Rule 11 motion coupled with a Rule 56 as quickly as you can get one on file.

The lead generation industry–both data sales and call sales–continue to lead to massive numbers of TCPA suits, of course. So this is hardly out of the norm. Slightly noteworthy given that the broker/network is being sued directly here. It DOES happen.

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