On that big post-election updates webinar I did with Mike Ferree last week I explained that 2024 was the worst year for TCPA defendants as rulings have simply gotten “worse.”

Quick clip on my explanation of how TCPA rulings have gotten “worse.”

He asked what I meant by that and I explained I mean “worse” both in terms of negative outcomes for Defendants but also in terms of tersely worded and lightly-reasoned TCPA rulings that just seem to “move the ball along.”

Take the case of Harrison v. Humana, 2024 WL 4828737 (W.D. Ky. Nov. 19, 2024). There the Court rejected all of Humana;’s motions– including an Article III standing challenge and several separate challenges to the vicarious and direct liability allegations in the complaint in about three pages.

Now I am all for judicial efficiency and spending only the amount of time needed to address an issue, but rulings of this sort feel barren and hollow. Leaving the defense wondering whether the court is really considering the issues–and the consequences.

Humana being stuck in a nationwide class action challenging every call it has placed arising–most likely–out of calls by a third-party that it did not control puts tremendous pressure on the company for no good reason. And given the limited allegations here it is too bad the court didn’t spend more time analyzing the issues–even if Humana still ultimately lost.

But I am not sure it should have.

For instance, an apparent authority theory looks at: i) whether the principal acted in a manner that the agent believed it had authority; or ii) the principal acted in a manner that lead the third-party to believe the agent was an agent.

But in Harrison the allegations were only that the callers –i.e. the would-be agent–held themselves out as Humana. But that doesn’t matter. The principal has to act in a manner to convey the apparent authority. Not the caller. Hence the court’s finding allegations “the callers were holding themselves out as agents of Humana and, under the circumstances, it was reasonable for Harrison to believe that the callers were agents of Humana” simply misses the point.

And after finding “apparent authority” was apparently pleaded, the Court ignored Humana’s challenge to the actual authority and ratification theories determining it was unnecessary to address those issues since the complaint had already survived on apparent authority–although it probably should not have.

Plus the court found Humana directly made the calls even though the allegations demonstrated a transfer took place to Humana:

In the Complaint, Harrison alleges that the call on May 9, 2023, which was purportedly made from the number 225-208-4162, began with a prerecorded voice and was then transferred to a person who identified him-or herself as being with Humana. (Compl. ¶ 38). Harrison has also alleged that the callers were marketing Humana’s products and services. (Compl. ¶¶ 43-44). Taking these allegations as true, Harrison has stated a TCPA claim for at least one call directly initiated by Humana.

Huh?

What?

The call was transferred to Humana. By definition, therefore, Humana did not make the call directly.

Eesh.

I tell you, TCPA cases have gotten worse in 2024 folks. Its just reality. A TCPA defendant cannot count on a well-reasoned analysis at the pleadings stage and should figure you might be stuck in the case until at least MSJ– and maybe even until trial these days.

It is really unfortunate but the courts seem to be blaming defendants for the huge upsurge in TCPA class actions, even though it is plainly the plaintiffs’ bar exploiting the TCPA for profit that is driving the upswing (and, perhaps, the scourge of fraudulent lead generators who must be stopped!)