But opinion warns that remaining TCPA charges vs. Alarm.com are “weak”
Despite registering – and renewing – her cellphone with the National Do Not Call Registry, Taraneh Vessal claims she was bombarded with calls.
According to a lawsuit filed by Ms. Vessal in March 2017, calls from security companies hawking Alarm.com products began shortly after she renewed her Do Not Call registration. And there were a lot of them – Ms. Vessal claimed she was contacted at least 75 times by authorized dealers of Alarm.com, an interactive security and home alarm monitoring solution provider. The third-party dealers, she claimed, called under a variety of generic names, including American Home Security, American Security Services, Central Security Group, United Security, and Bayside Security. Some of these dealers provided Alarm.com as their website address.
Ms. Vessal alleged that on nine occasions she followed the callers’ automated prompts to opt out of receiving the calls, but to no avail. The calls took place beginning in March 2016 and lasted throughout the year.
The suit, filed in the Northern District of Illinois, Eastern Division, alleged violations of the Telephone Consumer Protection Act (TCPA) and the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Ms. Vessal seeks actual and punitive damages and an injunction ending the calls for good.
State Charges Drop
Alarm.com moved to dismiss the case in June 2017.
The Illinois claims fell by the wayside in the court’s October 2017 opinion for several reasons. First, the court maintained, Ms. Vessal failed to demonstrate any deception or injuries that were substantial enough to satisfy the “the unfair or deceptive practice requirement” of the ICFA.
In addition, the court maintained that the “damages that Vessal claims to have suffered including increased usage of her telephone services, loss of cell phone capacity, and battery life, are not the kind of injuries that qualify as actual damage under the ICFA.”
The court allowed the case to continue under the TCPA count – with one caveat.
Ms. Vessal alleged that Alarm.com was directly liable for the calls. But the opinion states that direct liability could not be attributed to Alarm.com, because liability only adheres to parties that physically initiate the call. The court declined to dismiss the TCPA claim, observing the possibility of vicarious liability because under the TCPA, “a principal may be held vicariously liable for the acts of its agent.” Nonetheless, the court called the allegations “quite slim” because the only allegations that established a connection between Alarm.com and the third-party telemarketers were made on “information and belief” and certain statements made by the telemarketers.
“The saving grace for Vessal,” concludes the opinion, “is that the existence of an agency relationship is usually a factual question and any evidence of an agency relationship between Alarm.com and the identified third-party dealers is entirely within Alarm.com’s control.”