VanderSloot v. Charles Baratta LLC: Connecting Fictitious Caller Names to a Lead Generator Pleads Direct Liability

Background

The plaintiff's number was on the National Do Not Call Registry. Beginning August 30, 2023, he alleged over one hundred calls and texts soliciting a Camp Lejeune claim, from callers using first names and brands the complaint alleges were fictitious, including "Legal Helpers" and "Medical Health Department." He alleged the defendant, which does business as Prime Marketing Source, generates legal leads through telemarketing under fake names and sells them to law firms.

On the first call, he provided unique information to one caller. A second caller from the other "brand" later had that information. After he asked to be placed on a do not call list, calls continued. Eventually a caller referred him to a "law associate," and the number led to a person who gave an email address on the defendant's domain. That person later texted from the same number the first caller had used and identified himself as being from "Legal Helpers." Two numbers were alleged to be owned and operated by the defendant in its own name.

Pleading Changes Were Not Contradictions

The plaintiff stipulated he was pursuing only direct liability. The defendant argued the amended complaint contradicted the original. The court disagreed, since courts disregard amended allegations only in special circumstances and the amendment added detail connecting entities, people and numbers rather than contradicting facts.

Direct Liability Adequately Pleaded

Direct liability requires that the defendant initiated the calls, meaning it took the steps necessary to physically place them. The court looked to Martin v. Bottom Line Concepts where a callback revealed a trade name of the defendant, and Bank v. CreditGuard of America where follow-up investigation tied a live operator to a defendant.

Here, the plaintiff "connects the dots": one person used the defendant's email domain while claiming to be from "Legal Helpers" and texting from that brand's number; the "Medical Health Department" caller pointed to the same person as her associate and sent the same identity verification link; and unique information moved among the brands. The court found it plausible that "Legal Helpers" was interchangeable with the defendant.

The court distinguished dismissals where the only link was a conversation with the defendant's representative or where the complaint gave no specifics about the call's source. The Eastern District of New York has dismissed thin complaints on this issue, as in Vivint Solar. This complaint, by contrast, identified sources and the entities on whose behalf the callers spoke. At the pleading stage, the plaintiff need not negate the possibility that others placed the calls.

Outcome

The motion was denied, the discovery stay was vacated and the parties were ordered to propose a schedule.

Practical Points

• Plaintiffs: Callback numbers, email domains, reused numbers and information that only one caller received can carry a direct liability theory.
• Lead generators: Rotating names and brands does not prevent tracing if numbers, links and data are shared across them.
• Defendants: Direct liability dismissals in this district turn on how specific the complaint is about the call's source.

Read the Eastern District of New York memorandum and order.