So the Wolf is on the prowl again, but he was denied at least one piece of prey out in Virginia last week.

In Bryant v. Byron Udell & Associates, DBA Accuquote, 2023 WL 5180351 (E.D. Va. Aug. 11, 2023) Plaintiff–represented by Anthony Paronich, aka the wolf–sued Mutual of Omaha and an alleged lead supplier for prerecorded calls.

The calls at issue apparently transferred to a company calling itself “Senior Life”–an obvious false DBA–who, in turn, transferred the call to Mutual of Omaha.

While the Plaintiff predictably sued Mutual, in discovery the Wolf learned that a company called Accuquote had apparently been the lead supplier that made the prerecorded call. So the Wolf amended the complaint to Accquote.

Accuquote moved to dismiss, however, arguing that there were not enough allegations in the complaint to pin the calls on it, and the Court agreed.

Reasoning that the allegations Accuquote made the calls were merely conclusory the Court dismissed the case. While the Wolf pointed out that Mutual of Omaha had fingered Accuquote in discovery the Court refused to credit any facts that were not actually alleged–which is the right move.

So Accuquote is dismissed from the case, for now. Notably the Plaintiff was granted leave to amend so I suspect the Wolf will beef up the allegations here and re-file.

Couple of take aways here:

1. First, notice that prerecorded calls by a lead vendor have Mutual facing a TCPA class action. Cannot emphasize enough that prerecorded calls are leading to massive problems out there in TCPAWorld;

2. Notice also that the company that made the call cannot hide by Mutual of Omaha. MoO did nothing wrong by pointing to Accuquote here–in fact, it has to identify the party making the calls in discovery. If you think you can hide by selling transfers to somebody else… no way;

3. Although Accuquote is out for now, they will almost certainly be brought back in here. So this is a temporary win at best;

4. There is a state law component to this case– Plaintiff is seeking damages under the Virginia Telephone Privacy Protection Act (“VTPPA”), Va. Code § 59.1-512-514.

Remember, in Virginia, section 59.1-512 requires a telephone solicitor who makes a telephone solicitation call “to identify himself by his first and last names and the name of the person on whose behalf the telephone solicitation call is being made promptly upon making contact with the called person.” And calls include texts!

Plus DNC requests have to be honored for 10 years in Virginia–so watch out!

And damages in Virginia are pretty much nuts: $500 for a first violation, $1,000 for a second violation, and $5,000 for each subsequent violation. 

Oh yeah, plus attorney’s fees!