By Puja J . Amin
STATE FARM
By Puja J . Amin
AARON FROM STATE FARM CALLING
Court Holds State Farm May Be Responsible For TCPA Violations Of Independent Contractor Agent , And The Walls Are Closing In
AARON Franklin is an independent State Farm agent of State Farm Chattanooga , Tennessee .
His website boasts of his proximity to Volkswagen and Amazon , and it touts he has been proudly serving the Chattanooga area for over 18 years .
But on May 24 , 2023 , an employee of his office would send a very costly text message to one Gabriel Bou Nater .
According to State Farm , Franklin ’ s agency had engaged in a very common practice . It had purchased a lead from an online website operator connecting consumers with small businesses — like Franklin ’ s agency — that can provide cost-effective services . The lead provider was allegedly Ads Logistix , and the website where the Plaintiff purportedly provided his information was 1insurancerates . com .
One problem though — Plaintiff denied visiting the website or providing consent .
Nonetheless , State Farm argued it could not be liable for the calls because its Do Not Solicit ( DNS ) policy advises agents that it does not authorize them to make prerecorded calls and that fact , coupled with the apparent consent , means the calls at issue were not “ fairly traceable ” to State Farm .
State Farm attempted to rely on the Baroness ’ s huge win in Bacarri v . Carguard to support its cause , but the Court found this case was different .
In Bacarri , Troutman Amin , LLP had introduced direct evidence on behalf of Carguard that the calls at issue were definitively prohibited by the Defendant . State Farm had not gone far enough in the Court ’ s view .
The problem for all involved was a robocall pitching insurance that was sent the day before the Franklin text message . That robocall advertised insurance services . And that was the call Franklin was being called to account for .
State Farm correctly argued there was no connection between the robocall and the text message — the number the call was made from did not belong to Franklin , the content of the message did not mention State Farm , and no other evidence existed showing the call came from Franklin — but the mere coincidence was too much for the court to ignore .
The Court went on to deny State Farm ’ s motion to dismiss on vicarious liability as well . The Court determined the allegations of the complaint were sufficient to keep it in the case . Specifically , Plaintiff alleged State Farm ’ s insurance agents are authorized to hire third parties , including the unknown entity that contacted him , for marketing purposes . While that allegation seems to fly in the face of the DNS policy State Farm submitted , that policy was not properly considered on a motion to dismiss and the Court refused to credit it .
This case is very similar to the recent Hossfield loss for Allstate .
And it has shades of the recent ruling in Deshay involving Keller Williams .
In all three cases , the big name brand is being held liable for the actions of captive independent contractors within their umbrella . It is really not looking good for companies hoping to leverage ICAs to defeat liability in TCPAWorld ( at least not early in cases .)
It is really important to note that the Franklin Agency did not make the robocall at issue and did not accept a warm transfer from the robocaller . All it did was a send a text message to a lead . But because somebody else made a robocall the day before selling insurance , State Farm is trapped in a TCPA class action .
It ' s yet another risk to buying third-party leads . If that lead is sold multiple times — and they almost always are unless you are buying exclusive leads — you may be on the hook for calls someone else made .
Really pretty tough .
Not to worry though as we have a ton of great compliance tips and tricks we will be sharing at the Law Conference of Champions on July 15 , 2024 ! In person tickets are sold out ( except for clients and R . E . A . C . H . members ), but virtual passes are available .
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