Last week, the Western District of Washington granted in part and denied in part a motion to dismiss a TCPA putative class action lawsuit against Assurance IQ and Boomsourcing after finding that plaintiffs failed to allege facts to support the elements of a TCPA claim.  See Order Granting in Part and Denying in Part Motions to Dismiss, Rogers v. Assurance IQ, LLC, No. 2:21-cv-00823-TL (W.D. Wash. March 27, 2023).

Plaintiffs’ alleged they received pre-recorded marketing calls to their home landlines or cellphones from Assurance IQ, an insurance company, without consent.  Two of the plaintiffs also alleged that they received these calls despite having their numbers registered on the Do Not Call registry.  The complaint also sought to hold Boomsourcing liable for TCPA violations, alleging that Boomsourcing was Assurance IQ’s vendor that physically dialed the calls.

The court held that plaintiffs failed to allege a pre-recorded voice call claim because plaintiffs’ allegations simply stated that the calls were pre-recorded without offering any facts explaining how plaintiffs reached that conclusion.  The court explained that, even before discovery, plaintiffs should be able to allege facts that support the inference that the call was pre-recorded, such as the nature or circumstances of the call, rather than merely stating the legal conclusion.

Similarly, the court held that plaintiffs failed to allege facts to support a claim that Assurance IQ called their residential phone numbers after plaintiffs had registered their numbers on the Do Not Call registry.  Again, the court noted that these facts should be simple for plaintiffs to allege without discovery.  Instead, the complaint alleged that plaintiffs’ telephone numbers were for “personal use” rather than residential lines.  The complaint also used the passive voice to state the phone numbers “were registered” on the Do Not Call registry instead of alleging that plaintiffs themselves registered their numbers.  The court therefore found the allegations to be conclusory and insufficient to sustain the TCPA claim.

Finally, defendant Boomsourcing moved to dismiss on the theory that plaintiffs failed to allege it was directly liable for a TCPA violation, while defendant Assurance IQ argued that plaintiffs failed to allege it was vicariously liable.  The court agreed with Boomsourcing, noting that the allegation that Boomsourcing “physically dialed” the calls did not show that Boomsourcing knew Assurance IQ was placing the calls in violation of the TCPA.  Furthermore, plaintiffs failed to allege any facts that Boomsourcing physically dialed the specific calls made to plaintiffs.  As to Assurance IQ, the court held that plaintiffs failed to allege any facts establishing an agency relationship between Assurance IQ and the service providers that placed the calls. While the complaint mentioned a contract between Assurance IQ and Boomsourcing, it failed to include any specifics demonstrating the contract required Boomsourcing to place pre-recorded calls on Assurance IQ’s behalf.

Despite these significant deficiencies in the amended complaint, the court granted plaintiffs leave to amend their complaint one final time, noting that the previous amendments were not in response to a motion to dismiss.

    Photo of Jenna Zhang Jenna Zhang

    Jenna Zhang is an associate in the firm’s San Francisco office. She is a member of the Data Privacy and Cybersecurity practice group. Jenna advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, product development, and responses to…

    Jenna Zhang is an associate in the firm’s San Francisco office. She is a member of the Data Privacy and Cybersecurity practice group. Jenna advises clients on a broad range of privacy and cybersecurity issues, including compliance obligations, product development, and responses to regulatory inquiries. She also maintains an active pro bono practice with a focus on immigration.