Hossfeld v. Government Employees Insurance
88 F. Supp. 3d 504
D. Maryland2015Background
- Plaintiffs Robert Hossfeld and Christopher Legg allege GEICO violated the Telephone Consumer Protection Act (TCPA) by placing or causing automated/prerecorded telemarketing calls to their cellular phones without prior express consent.
- Hossfeld received a call that began with a pause indicative of an autodialer, was transferred to a live GEICO sales agent, and informed the agent he was on the National Do Not Call Registry; he alleges the transfer process and dialer pacing were controlled to avoid "dead air."
- Legg received calls with a prerecorded prompt and then a live agent who obtained personal information; he later received an email quote from GEICO, which the complaint ties directly to GEICO.
- Plaintiffs allege GEICO used third-party telemarketers, provided scripts and instructions, and either directly initiated calls (Legg) or is vicariously liable for third-party calls (Hossfeld).
- Procedural posture: Plaintiffs filed an amended complaint asserting TCPA claims; GEICO moved to dismiss; plaintiffs sought leave to file a surreply and for limited early discovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether calls were made using an ATDS or prerecorded voice | Plaintiffs allege calls used an autodialer/prerecorded voice (distinctive pause, prerecorded prompt) | GEICO disputes sufficiency of ATDS/prerecording allegations | Court found plaintiffs' factual allegations sufficient at the pleading stage |
| Whether GEICO directly "initiated" the calls | Legg: call was placed directly by GEICO (email quote followed) | GEICO: calls were made by third-party telemarketers, not GEICO | Court held Legg adequately pled direct liability for GEICO |
| Whether GEICO can be vicariously liable for third-party telemarketers | Hossfeld: GEICO contracted with, scripted, and controlled telemarketers; therefore vicarious liability applies | GEICO: plaintiffs failed to plead the relationship details needed to establish agency | Court held plaintiffs sufficiently pled facts supporting vicarious liability under federal agency principles |
| Procedural requests: surreply & early discovery | Plaintiffs sought leave to file a surreply and limited early discovery to preserve evidence | GEICO opposed surreply and argued discovery premature; asserted litigation hold in place | Court denied both motions: no surreply leave; early discovery denied under local rules (scheduling order required) |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (U.S. 2012) (discusses congressional purpose in enacting the TCPA)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must show entitlement to relief; more than mere possibility)
- Gager v. Dell Fin. Servs., 727 F.3d 265 (3d Cir. 2013) (TCPA protects consumers from intrusive unwanted calls)
- Maryland v. Universal Elections, Inc., 729 F.3d 370 (4th Cir. 2013) (seller liability for creating/distributing messages relayed by third party)
- Kristensen v. C.r. Payment Servs., 12 F. Supp. 3d 1292 (D. Nev. 2014) (requirements to plead vicarious liability under TCPA)
- Wagner v. CLC Resorts & Devs., Inc., 32 F. Supp. 3d 1193 (M.D. Fla. 2014) (plausible pleading of seller liability where calls serve seller's marketing)