TCPA Class Action Review – 2025

4. Rulings Granting Motions To Dismiss For Failure To State A Claim

The court in Andersen, et al. v. Nexa Mortgage, LLC , 2024 U.S. Dist. LEXIS 143293 (C.D. Cal. Aug. 12, 2024), made clear that communications aimed at recruiting for employment do not fall under the TCPA’s definition of unsolicited marketing, and emphasized the importance of factual support for claims involving automated dialing systems and prerecorded messages. In this case the court dismissed the plaintiff’s TCPA claims for failure to state a claim against the defendant. The plaintiff filed a class action alleging that the defendant, a mortgage broker, sent unsolicited communications to the plaintiff even though his cell phone number was registered on the National Do Not Call Registry. Specifically, the plaintiff alleged that he received three unsolicited text messages and one unsolicited phone call describing the benefits of becoming a “Mortgage Banker” with the defendant. The caller purported to be the defendant’s recruiting manager. In response to the plaintiff’s claims that the defendant violated the TCPA’s prohibitions on multiple telephone solicitations within a twelve-month period, the use of an automatic telephone dialing system, and the use of prerecorded calls, the defendant filed a motion to dismiss pursuant to Rule 12(b)(6), which the court granted. First, the court held that the plaintiff failed to state a claim because all of the communications described in the complaint were for the purpose of recruiting the plaintiff for employment, and thus were not solicitations. Id. at *6-7. Second, the court rejected the plaintiff’s automatic telephone dialing system argument because of the lack of factual allegations on the issue in the complaint. Specifically, the court took note of the personalized nature of the text messages, which included the plaintiff’s name. Id. at *9. Similarly, the court found that the plaintiff’s prerecorded phone call claim lacked factual support. The plaintiff made only vague allegations about a “long pause” before the voicemail, which could not substantial the claim that it was a prerecorded message. Id. at *10. The court concluded that without concrete evidence to distinguish between a prerecorded and a live voice, the claim should be dismissed. Accordingly, the court granted the defendant’s motion to dismiss the plaintiff’s claims. In Cacho, et al. v. McCarthy & Kelly LLP , 2024 U.S. Dist. LEXIS 117544 (S.D.N.Y. July 3, 2024), the court highlighted the importance of specifically pleading either direct or vicarious liability. In this case the plaintiff allegedly received multiple calls from a man asking whether he or any of his family members had spent time at Camp Lejune between certain dates and had suffered from health-related issues. After informing the caller of his registration with the Do Not Call Registry and requesting not to be contacted again, the plaintiff contended that he continued to receive at least 30 additional calls over the following weeks. Subsequently, after another call, the plaintiff, using the pseudonym “Alex Rivera,” claimed that his deceased father had been at Camp Lejeune and suffered from a disease. This led to a conversation with William Kelly, a partner at the defendant’s firm, who sent the plaintiff multiple emails regarding potential claims for financial compensation related to the Camp Lejeune situation. Later that day, the plaintiff received a representation agreement from the defendant, which outlined the terms of their potential legal relationship, including a contingency fee structure. However, the plaintiff declined to sign the agreement, and indicated he was not interested in pursuing a claim. The plaintiff then filed the instant action alleging violation of the TCPA. The defendant filed a motion to dismiss for failure to state a claim, which the court granted. The defendant first argued that the plaintiff’s cellphone was not covered under the TCPA because the plaintiff was not a “residential telephone subscriber.” Next, the defendant contended that the calls were not telemarketing solicitations, as they did not encourage the purchase of goods or services. Finally, the defendant challenged the complaint’s sufficiency in alleging that it initiated any calls to the plaintiff or that it can be held vicariously liable for the actions of telemarketers. The court rejected the defendant’s argument that the plaintiff fell outside the TCPA’s protections simply due to the nature of his telephone subscription. Id. at *26. Second, the court ruled that based on the content and context of the alleged calls, the plaintiff adequately pleaded that their purpose was to encourage him to purchase the defendant’s legal services by entering into a representation agreement for claims arising out of injuries sustained at Camp Lejeune. Id. at *36. Finally, the court examined whether the defendant directly placed the telemarketing calls or if it could be held vicariously liable for the actions of telemarketers they allegedly hired. The defendant argued that the plaintiff’s complaint did not explicitly state that it made the calls in question or that they were responsible for the telemarketers’ actions. In response, the plaintiff contended that he has provided enough information to warrant discovery aimed at uncovering the relationship between the telemarketers and the defendant. The court determined that the plaintiff failed to sufficiently allege direct liability, as the claims asserted that the defendant employed anonymous telemarketers to make the calls rather than making them personally. The court stated that while the plaintiff’s complaint included a general claim that the defendant called him numerous times, the plaintiff specifically alleged that the calls were made by third parties, who were not controlled by the defendant. Id. at *46. The court ruled that the plaintiff’s claims failed to establish that the telemarketers were acting with actual

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