TCPA Defendant Sidesteps Suit With Improper Identification

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

The failure of a plaintiff in a Telephone Consumer Protection Act (TCPA) action to properly identify the defendant led a New Jersey federal court to dismiss the action with prejudice.

Brennan Landy filed a putative class action against Vision Solar, LLC d/b/a Solar Exchange. The one-count complaint alleged that Landy received more than one telephone solicitation from the defendant despite being registered on the National Do Not Call Registry.

Defendant moved for dismissal of the initial complaint because it claimed that no corporate entity named “Vision Solar, LLC d/b/a Solar Exchange” exists or was formed. Landy wrongly attempted to combine two distinct and separate entities as a single entity without any support for using the legally operative “d/b/a” designation or attempt to link the two entities in the complaint, the defendant told the court. The court granted the motion with leave to file an amended complaint.

Landy then filed an amended complaint, arguing that on information and belief Vision conducts at least a portion of its business under the name “Solar Exchange.”

But the court again granted the defendant’s motion to dismiss, this time with prejudice.

Plaintiff did not amend the caption or remove any references to “d/b/a Solar Exchange” throughout the amended complaint, and instead argued that it was a factual allegation that must be accepted as true at the motion to dismiss stage.

The court disagreed. “[T]his is not a factual obligation that must be taken as true but is instead an impermissible legal conclusion,” the court wrote. “Thus, the court finds the plaintiff continues to attempt to combine two distinct and separate entities as a single entity without any support for using the legally operative ‘d/b/a’ designation or attempt to link the two entities in the amended complaint.”

Despite the previous opinion granting dismissal, Landy continued to rely upon a 2019 press release from a commercial real estate company which included the name “Vision Solar, LLC doing business as Solar Exchange.”

“As previously found, the press release is an insufficient foundation for the connection between Vision Solar and Solar Exchange,” the court said. “Significantly, plaintiff fails to provide any legally reliable and/or verified documents that establish ‘Vision Solar, LLC d/b/a Solar Exchange’ as the name of any registered and/or legally recognized entity.”

Landy did update the amended complaint to allege that during one of the calls he received, the call center operator stated that Solar Exchange and Vision are “partner companies,” but the court was not convinced.

“Such allegation contradicts plaintiff’s belief that Vision Solar, LLC and Solar Exchange are not partner companies but are the same company,” the court wrote. “Plaintiff’s amended complaint fails to provide the sufficient foundation for the claim that Vision Solar, LLC does business under the fictitious name Solar Exchange and is, therefore, dismissed in its entirety.”

To read the opinion in Landy v. Vision Solar, LLC, click here.

Why it matters: The defendant was able to have the TCPA class action complaint dismissed with prejudice based on the plaintiff’s failure to properly identify the defendant as a corporate entity, or its responsibility for the at-issue calls.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Manatt, Phelps & Phillips, LLP

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