A federal court in Usanovic v. Americana, L.L.C. dismissed a putative class action that tried to tie Berkshire Hathaway HomeServices Nevada Properties (“Berkshire Hathaway”) to allegedly illegal telemarketing calls made by third-party independent contractors. The plaintiff claimed she received numerous unsolicited calls from Berkshire Hathaway-affiliated agents after her home listing expired, despite her number being listed on the National Do Not Call Registry since 2005. But without solid allegations of an agency relationship, the court wasn’t persuaded.
The court rejected all three theories of vicarious liability under the TCPA—actual authority, apparent authority, and ratification. Training seminars, suggested scripts, and vendor referrals are insufficient, the court said—especially when the supposed “agents” are independent contractors who decide whom to call, when, and how. No factual allegations showed Berkshire Hathaway actually directed agents to call DNC-listed numbers or mandated the use of third-party lead lists. No control, no direction, no liability.
Apparent authority also failed. The court found the plaintiff leaned too hard on the agents’ own representations. Name-dropping an entity, without more, is insufficient. Under the TCPA case law, apparent authority generally must be established by representations from the purported principal that the call recipient would reasonably rely upon to believe that the caller has apparent authority.
As for ratification, the court emphasized that liability requires knowledge—or at least willful ignorance—of unlawful conduct. The complaint failed to allege that Berkshire Hathaway knew calls were going to DNC-listed numbers or that Berkshire Hathaway benefited from or turned a blind eye to the calls. Without those specifics, ratification will not stick.
After multiple amendments and repeated failure to plead facts showing any plausible agency link, the court dismissed the case with prejudice. The message is clear: in TCPA suits, vague references to training and brand affiliation will not cut it. Plaintiffs need to show real control, real authorization, or real acceptance of the misconduct, or risk getting disconnected.
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