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Solid Gold: Opinion on Indemnity in TCPA Class Action May Have Generated the Best Intro to a Court Opinion Ever…
Thursday, April 18, 2024

Oh Honorable Chief Judge Holly A. Brady of the Northern District of Indiana, I have never met you– but I adore your sense of humor (in a deeply respectful sort of way, of course.)

Here is how Her Honor began a recent opinion in a putative TCPA class action:

Many have received unsolicited marketing calls. Few answer. Even fewer call back.

Almost no one attends a seminar pitched by the unsolicited call. And maybe one in eight billion attends that seminar out of spite.

The Court is oh so fortunate to have found that unicorn…

Apparently, Rapp did not develop a million-dollar insurance agency after attending the seminar, so he’s turned to the federal courts to find his riches.


Love it. Oh I love it so much.

I have one of those weird cheek-aches you can get when you smile too hard too early in the morning. Oh dear.

This case really is a wild ride though. Here is how the court sets out the facts:

After receiving a telemarketing call at the crack of 7:30 a.m., Plaintiff Aaron Rapp (“Rapp”) turned cellular Sherlock Holmes. Through a series of voicemails and telephone conversations, Rapp signed up for “The Million Dollar Agency Workshop,” a Zoom recruitment seminar for insurance agents allegedly put on by Defendants Integrity Marketing Group, LLC (“IMG”), First Family Life, LLC (“FFL”), and Montalto United Insurance Agency, LLC (“MUIA”).

Rapp then attended the seminar, which featured Third-Party Defendants Ryan Montalto (“Montalto”) and Donald Tuttle (“Tuttle”) as speakers.

The operative complaint is a fifteen-page class action alleging violations of the Telephone Consumer Protection Act (“TCPA”) against IMG, FFL, and MUIA. (ECF No. 12).

MUIA then brought a third-party complaint for indemnification and contribution against Montalto and Tuttle. (ECF No. 18). Tuttle then filed a cross-claim (which probably should have been titled a third-party counterclaim) for indemnification and contribution against MUIA. (ECF No. 23)

Oh my.

Get it?

So dude sues webinar promoter for calls. Webinar promoter sues SPEAKERS for some reason for indemnity– that’s weird right?–and speakers sued webinar promoters back.

With me so far?

So webinar promoter moved to dismiss the speaker’s complaint for indemnity against the promoter. The speaker did not oppose the motion–but the Court denied it anyway!

Here was the analysis:

All that is required for common-law claims for contribution is “the incurrence of a monetary obligation that is attributable to the actions of another party.” Pflanz v. Foster, 888 N.E.2d 756, 759 (Ind. 2008). Similarly, the “right to indemnity may be implied at common law only in favor of one whose liability to another is solely derivative or constructive and only against one whose wrongful act has caused such liability to be imposed.” Mullen v. Cogdell, 643 N.E.2d 390, 400 (Ind. Ct. App. 1994). Both claims, then, require little more than that the claimant has been held responsible for someone else’s conduct.

Tuttle’s allegations, while not a model of thorough pleading, claim that the TCPA violations were committed by Montalto while Montalto was acting as an agent of MUIA. So Tuttle alleges that Montalto and MUIA should be responsible for “contribution to or indemnifying against” any losses sustained by Tuttle in this suit. That strikes the Court as enough.

Love this. Simple. Elegant and to the point.

So the Court provides a lovely prelude to what ends up being a delightfully pithy analysis allowing the speaker to pursue his claim for contribution and indemnity.

Notice what tangled webs TCPA class actions can weave here. One little call to the wrong dude resulted in a massive TCPA class action with three defendants, two cross-defendants, one counterclaim, and a partridge in a pear tree.

At least the Court had some fun with this one.

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