Judge Denies MSJ Against Owner of ATDS Platform in TCPA Vicarious Liability Case

A District Court judge in Wisconsin has denied a motion for summary judgment filed by the owner of a company that provided autodialing services after he was sued by a serial plaintiff for allegedly violating the Telephone Consumer Protection Act.

A copy of the ruling in Cunningham v. Montes can be accessed by clicking here.

The plaintiff — noted frequent filer Craig Cunningham — received a number of unsolicited telemarketing calls on his cell phone, which he recorded. Some of those calls came from customers who used the defendant’s system, a defunct company known as TollFreeZone.com. He subsequently filed suit, but also sued Michael Montes, Jr., the owner of the company. The judge refused to grant summary judgment in favor of the defense, ruling that because the defendant sometimes “set up and ran some of his clients’ campaigns from start to finish” and wrote scripts for his clients, the defendant “had significant control over, and knowledge of, his clients’ robocalls.”

When he was deposed, the defendant was less-than-definitive in his answers. When asked whether he ran or was involved in campaigns for his client, the defendant answered, “No, not usually.” And when he was asked about writing scripts for clients, he answered, “I might have.” Judge James Peterson of the District Court for the Western District of Wisconsin ruled that the defendant could not be entitled to summary judgment “with such equivocal testimony.”

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