Pascal v. Agentra, LLC

Background

Lawrence Pascal filed a putative class action concerning alleged unauthorized telemarketing calls to consumers’ phones. He alleged that a company identified as Doe placed calls using artificial or prerecorded voices to market health-insurance products and services connected to Agentra, LLC; Data Partnership Group, LP (DPG); and I Health and Life Insurance Services (IHL). Pascal alleged that he received one such call without consenting to it.

Pascal asserted claims under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and California’s Consumers Legal Remedies Act (CLRA), California Civil Code section 1770(a)(22)(A). Agentra and DPG moved under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal for failure to state a legally sufficient claim. They sought dismissal of the TCPA claim and argued on reply that the same reasoning applied to the CLRA claim.

Court’s Analysis

Pascal conceded that Agentra and DPG did not directly make the calls. He instead argued that they were vicariously liable, meaning legally responsible for calls made by another, under three agency theories: actual authority, apparent authority, and ratification.

The court held that the complaint did not adequately allege an agency relationship between Agentra or DPG and Doe, the alleged caller. It also found insufficient allegations that Agentra or DPG controlled Doe or had the right to control Doe, manifested consent to such control, directed Doe to make unlawful robocalls, or generally authorized that conduct. The allegations that IHL hired Doe to market Agentra’s and DPG’s products and that the defendants accepted business generated through the calls were not enough to support actual authority.

The court also rejected the apparent-authority theory because the complaint did not allege sufficient facts showing that Agentra or DPG made a representation on which a third party reasonably relied. The court noted uncertainty in the legal authorities about whether an agency relationship is independently required for apparent authority, but concluded that the pleaded facts were insufficient in any event.

The ratification theory also failed because the complaint did not sufficiently allege an agency relationship or facts showing that Agentra or DPG affirmed Doe’s prior conduct. The court therefore concluded that the complaint did not plausibly allege that Agentra or DPG “made” the calls under the TCPA.

Disposition

The court stated that the TCPA claims were dismissed without prejudice. It dismissed the CLRA claim with leave to amend because the complaint likewise did not sufficiently plead vicarious liability against Agentra or DPG. The court’s conclusion states that Agentra and DPG’s motion to dismiss the TCPA and CLRA claims was granted with leave to amend. Any amended complaint had to be filed within 14 days of the order.