Bank v. Alleviate Tax: "Transferred to an Employee" Is Not a Pleading Strategy

The Calls

The plaintiff, an attorney representing himself, alleged three automated calls in June 2023 to a residence number which he used regularly. Each featured a robotic message advertising tax-debt services. None, he alleged, identified who was behind it. On the first call he pressed a button and was "transferred to an employee of Alleviate." After the second, he called back the number given in the message and, after more recorded material, an "employee of Alleviate" came on.

That was nearly everything. The court observed that the description of each call's contents in the complaint was essentially a label: an advertisement, telemarketing, tax-debt services.

Who Made the Call?

Direct liability under § 227(b) requires that the defendant initiated the call. Vicarious liability requires an agency relationship between the caller and the defendant. Some connection is not enough.

The court found neither. No caller ID. No message naming the company. No details about the conversation with the person on the line, or how the plaintiff learned that person worked for the defendant. The court leaned on an earlier Eastern District of New York decision involving the same plaintiff, Bank v. Vivint Solar, and on the Federal Communications Commission (FCC) 2015 ruling, which asks who took the steps to physically place the call and whether anyone else was so involved as to be deemed the initiator. The complaint answered neither question.

The transfer did not help. Ending up on the phone with a company does not reveal who dialed you. And repeatedly calling the calls "Alleviate Calls" in the complaint did not help either. As the court put it, "simply asserting a purported fact does not make it one."

The court contrasted a case where the plaintiff was transferred to a live representative who said the call was placed to promote the defendant's goods. Details like that are what was missing here.

The Registry Claim Forgot the Registry

The Do Not Call claim had a simpler problem. The complaint never alleged the number was on the National Do Not Call Registry. The plaintiff called it an "oversight" and asked to amend.

No Third Try

Leave to amend is often freely given, but not this time. The court pointed to an earlier case where the same court denied amendment for similar omissions, a ruling the Second Circuit affirmed. He had already amended once, right after previewing the defendant's arguments, and offered no good cause. With the federal claims gone, the court declined supplemental jurisdiction over the New York General Business Law claim.

Takeaways

• Plaintiffs: Plead the caller ID, what the message said, and what the live person said about who they worked for.
• Registry claims: Allege the number was registered. Every time.
• Defendants: A bare transfer allegation is attackable, especially in courts that follow Vivint Solar.

Read the Eastern District of New York memorandum and order.