Jurisdictional cases are interesting under the TCPA.

Like so much ese here in TCPAWorld much lies in the eye of the beholder.

The rules–simply stated–are that a company cannot in a jurisdiction where it does not operate unless it has “purposely availed” itself of the benefits of that jurisdiction in some meaningful way.

In the TCPA context this comes up a lot because a marketer might be conducting business in a state where a seller is not. And when that happens whether the seller can be sued in that state is truly “too close to call.” (Too soon? ha.)

Many courts will hold that the seller is simply not subject to suit in the far away jurisdiction. But others disagree–particularly where traditional agency can be shown.

And that was the case in Jones v. Mutual of Omaha, Civil Action No. ELH-22-905, 2022 WL 16763733 (D. Md. Nov. 7, 2022)

There the Court found the Plaintiff had sufficiently alleged Mutual of Omaha “controlled” the marketer such that the marketer’s conduct was attributable back to Mutual of Omaha.

It will remain to be seen whether Mutual can preserve its jurisdictional objections moving forward. Jurisdiction is a tricky thing–it can be waived by excessive participation in the lawsuit. Yet Mutual is now forced to participate, on the one hand, but if it turns out the marketer was not really its agent then it still might have a jurisdictional challenge, on the other hand.

One other thought–if it turns out the Plaintiff’s allegations of control are baseless (i.e. that the marketer was not Mutual’s agent) this feels like a Rule 11 issue to me. Have to be aggressive with litigators that cherry pick a jurisdiction with false allegations. Just my two cents.

We’ll keep an eye on this one.