Ninth Circuit holds cruise line may be liable when volume of warm transfers generated from opt-in websites ‘incredible’ – TCPAWorld

the McCurley vs. royal seas The TCPA case is a legend.

Bad captions. Like ghosts in dungeons. Or Morbius.

This was the first certification decision involving calls to allegedly fraudulent prospects. And the defense attorney ended up engaging in unethical conduct that resulted in sanctions.

Yet somehow the defendant won a “miraculous” victory with a summary judgment victory – with the court finding that the the cruise line was not responsible for the company’s acts that she paid to generate warm forwarding phone calls.

But that just changed on appeal when the Ninth Circuit realized consumers probably had endured over 20 million robocalls so a cruise line could sell 560 tickets.

Good God.

So, a bit of context here.

Sellers of products, like cruises, often pay companies (called lead generators) to generate inbound phone calls for them. The lead generator will do… things… to get consumers on the phone and then transfer interested consumers to the seller of the product.

The lead generator here was a company called Propsects. And the “thing” they were supposed to do was run websites like and http://www.yourautohealthlifeinsurance-
.com. These websites were supposed to have consent forms allowing prospects to call consumers who agreed to the disclosures to sell Royal Seas cruises. Once the consumer was on the phone and expressed interest, Prospects would then transfer the call to Royal Seas.

Supposedly using this process, Prospects generated calls for Royal Seas. Tons of calls. Millions appeals over a two-year period.

Now, if that sounds weird to you, it is.

First, what do insurance and diabetes websites have to do with cruises?

Put that aside, do millions people actually visit these sites? And do millions people really agree to be contacted for cruises on these sites? And do millions people then stay in line to be transferred to a cruise line?

While the answer to these questions might be a sort of yes — not impossible — consider the final piece of the puzzle: only 560 people actually bought cruises from all those millions of calls.


This folks, that’s why we have a robocall problem in this country. And this folks, that’s why there’s so much interest in REACH-when a lead generator has to make 35,710 calls to make a sale, something is seriously wrong.

And that did not escape the Ninth Circuit Court of Appeals.

In a new opinion published yesterday, the Court of Appeal concluded that the trial court had been mistaken. The review can be found here McCurley

The Ninth Circuit found that on the facts described above – of which Royal Seas was aware – a jury could conclude that it had knowingly ratified the unlawful conduct of the lead generator. Critically for primary buyers, the Court cast doubt on claims that millions of people really went to these obscure websites:

Royal Seas was also aware that it had received 2.1 million hot-forwarded calls from Prospects between January 2017 and June 2018. Royal Seas was aware that TCPA compliance required that each call be directed to someone who had previously ‘opted in’ to be called by Royal Seas by clicking “next” after submitting personal contact information and seeing a consent box on websites such as and http://www.yourautohealthlifeinsurance- .com. Royal Seas was aware that calls made by Prospects to people who allegedly consented by checking forms on the website generated 80,081 hot transfers to Royal Seas in 2017. Plaintiffs submitted expert testimony that this number of transfers, which was only a subset of calls made by Prospects, from this lead generation website during this period is at best implausible.

Again, keep in mind that 2.1 million hot transfers probably means 10 or 20 times as many calls were made to get that many people on the phone. Thus, more than 20 MM of calls were probably made within the framework of this campaign.

And as I teased above, the sales count here was miniscule:

Royal Seas was also aware that of the 560 customers Prospects had hot-transferred who had made purchases from Royal Seas, 13% had phone numbers that did not match the customer consent data Prospects had provided to Royal Seas. , and 31% had no phone number. matching phone number and last name.

The court’s point here is that the data provided by the prospects was not accurate.

But what I mean here is that only 560 sales took place – again on 20MM calls.

They are not decent people.

No wonder the Ninth Circuit sent the case back for jury consideration. The Court determined that a jury can find that Royal Cruise ratified – that is, knowingly accepted – the benefit of Prospects’ calls while turning a blind eye to the “incredible” call volumes these people were generating. .

Since the case has already been certified Royal Cruise is now considering a lawsuit for MINIMUM $1BB.

All for 560 sales.

I do not know what to say.

I am a defense lawyer. And I love my customers. They take compliance seriously. And despite their massive footprints, they only face relatively rare lawsuits – and most of them are without merit. This is because they operate in a legal and compliant manner, seeking to connect only with consumers who actually want their products.

Direct-to-consumer marketing CAN BE DONE in a legal way that helps consumers

But like McCurley seems to demonstrate that it can also be done horribly. And Americans are all too familiar with this kind of misconduct. It’s the politics of color in this country — from the FCC seeking more authority to fight congressional robocalls to a slew of new state law bans.

And it’s only going to get worse if the lead generation industry doesn’t up its game. RIGHT NOW.

Also, a word to the wise – if you’re a lead marketer, make sure the volume of calls and data leads a generator/aggregator delivers to you is consistent with their apparent market footprint, quality of advertising spend and URLs. if you’re getting millions of calls from “”, you better ask yourself why. Your contracts won’t save you, because MCCurley now establishes.

I will continue to preach. But please help spread this gospel.