Hey TCPAWorld!
Vicarious liability demands more than a loose business association between entities.
In Gonzalez v. Savings Bank Mutual Life Ins. Co. of Mass., No. EP-24-CV-00289-DB, 2025 WL 1145266 (W.D. Tex. Apr. 15, 2025), Yazmin Gonzalez’s (“Plaintiff”) claims of vicarious liability under the TCPA were dismissed due to insufficient factual allegations linking Savings Bank Mutual Life Insurance Company of Massachusetts (“SBLI”) to Elsworth Rawlings or American Benefits, its alleged subagents.
Background
According to Plaintiff’s First Amended Complaint (“FAC”), in early 2024, Plaintiff began receiving a series of telemarketing calls to their phone number ending in 1859, which was listed on the National Do-Not-Call Registry (“DNCR”). Id. at 1. Plaintiff claims to have received eight calls, each featuring the following prerecorded message:
“Hi, this is Stephanie, I’m calling you from American Benefits… “
Id. Plaintiff alleged that she informed the agent that she was not interested and requested the calls to stop on the fourth call. The calls continued.
On the eighth call, Plaintiff impersonated her mother to identify the company behind the calls. Plaintiff received a call from a number ending in 2986, allegedly the same agent she connected with earlier. The agent then supposedly connected her to “Elsworth Rawlings,” who did not identify the company he worked for, asked qualifying questions, and then informed her that he would be transferring her to an SBLI agent. Plaintiff was transferred to another agent that allegedly introduced themselves as Bell and completed Plaintiff’s insurance application. After the application was approved, she was transferred back to Rawlings. Plaintiff later received an insurance policy bearing Rawlings’ signature. According to Plaintiff, the call line was one long chain which did not disconnect at any point.
Plaintiff’s Allegations
In her FAC, Plaintiff alleges that:
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Rawlings is a licensed insurance agent who was appointed by SBLI to market, solicit, and sell insurance on [their] behalf… on February 20, 2024;
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SBLI and Rawlings set up a phone system that allowed them to coordinate applications and transfer applicants back and forth between them; and
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SBLI appointed Rawlings with the knowledge and expectation that Rawlings would make phone calls to solicit SBLI’s products and services.
Id. at 2.
The Agreement
Under the Agreement executed between SBLI and Rawlings, SBLI authorized Rawlings to solicit and transmit life insurance applications, but expressly prohibited him from presenting himself as an SBLI employee or agent beyond what was contractually permitted. Additionally, Rawlings was required to protect SBLI’s reputation and comply with applicable laws and regulations. Plaintiff further alleged that American Benefits was acting as Rawlings’ agent—and therefore as SBLI’s subagent.
Legal Standard
SBLI moved to dismiss under Rule 12(b)(6), arguing that the complaint failed to plead sufficient facts to state a plausible claim for relief.
The TCPA provides a private right of action under 47 U.S.C. § 227(b), which regulates autodialed or prerecorded calls to cell phones, and 47 U.S.C. § 227(c), which protects those on the DNCR. Plaintiff can establish vicarious liability through common law agency principles by showing the caller acted on behalf of Defendant.
Court’s Analysis
Plaintiff’s FAC raises two causes of action against SBLI:
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Eight (8) violations under Section 227(b)(1)(A) by making non-emergency telemarketing robocalls to Plaintiff’s cellular telephone numbers without her prior express written consent, and
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Violations under Section 227(c) and 47 C.F.R. § 64.1200(c) for making eight (8) unsolicited calls to Plaintiff’s line, which was registered on the DNCR, without Plaintiff’s consent.
Id. at 3. In its Motion to Dismiss, SBLI argued Plaintiff failed to plead any facts linking the calls to SBLI under Sections 227(b) or 227(c). Because the Agreement executed between SBLI and Rawlings was attached to SBLI’s Motion to Dismiss, the Court treated it as part of the pleadings when evaluating the plausibility of the allegations.
The Court found that Plaintiff failed to plead sufficient facts under 227(b) to establish direct liability against SBLI, as SBLI neither made the calls nor controlled the party that made the calls. Instead, each call was initiated by “American Benefits,” as indicated by the prerecorded message cited in Plaintiff’s Complaint. As a result, the Court held that SBLI cannot be held directly liable for any of the telemarketing calls.
The Court also rejected Plaintiff’s theory of vicarious liability under the TCPA, finding she failed to allege sufficient facts to establish an agency relationship between SBLI and Rawlings. To support vicarious liability, a plaintiff must show actual authority, apparent authority, or ratification. The court emphasized that merely identifying Rawlings as a “subagent” was not sufficient without factual support showing SBLI’s control or acceptance of the calls. Id. at 4.
No Actual Authority
According to the Court, actual authority exists when the principal expressly or implicitly grants the agent authority to perform a particular act. Here, there was no actual authority because Plaintiff did not allege facts showing SBLI controlled the manner and means of the telemarketing campaign or granted Rawlings the power to hire American Benefits. Plaintiff also failed to allege SBLI’s control over Rawlings’s day-to-day operations or any direct connection to the American Benefits telemarketer.
No Apparent Authority
“[A]n agent has apparent authority to bind a principal if a third party reasonably believes the agent has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Id. at 5. (Citations omitted). Plaintiff failed to demonstrate apparent authority as there is no evidence that SBLI held out Rawlings or the telemarketer as having authority to act on its behalf. Although Plaintiff alleged SBLI gave Rawlings instructions and coordinated systems for processing applications, she did not plead facts showing SBLI’s conduct led her to reasonably believe the caller was acting for SBLI. As a result, the Court held that Plaintiff did not plausibly allege apparent authority.
No Ratification
Lastly, Plaintiff’s ratification theory fails because she did not allege that SBLI had knowledge of any unlawful calls made by Rawlings or American Benefits. To support ratification, the principal must be aware of the conduct and either accept the benefits or fail to repudiate it. The court found no factual basis showing SBLI affirmed or accepted any TCPA-violating conduct, and thus ratification could not establish vicarious liability.
The Court concluded that neither American Benefits nor Rawlings acted as SBLI’s agent under any agency theory, thus, SBLI could not be held liable under Section 227(b). The Court also dismissed Plaintiff’s Section 227(c) claim, since Plaintiff could not attribute a single call to SBLI. As a result, both TCPA claims were dismissed.
Vicarious liability under the TCPA demands more than just an ordinary business association. It requires well-pled facts that establish a clear agency relationship, showing that the defendant exercised control over the caller’s conduct, granted the caller to make the calls, or knowingly accepted the benefits of those calls while being thoroughly aware they violated the law.