Independent Contractor vs. Agent under the TCPA

The Ninth Circuit Court of Appeals went back to the basics in addressing whether a telemarketing vendor acted as defendant’s authorized agent for purposes of TCPA liability. In Jones v. Royal Admin. Servs., Inc., No. 15-17328, 2017 WL 3401317 (9th Cir. Aug. 9, 2017) (“Jones”), the Ninth Circuit endorsed the time-honored multi-factor test set forth in Restatement (Second) Of Agency, and on that basis affirmed the district court’s grant of summary judgment. The decision provides further reassurance that traditional agency principles apply in assessing potential TCPA exposure related to calls. Continue reading

Eleventh Circuit Holds That Revocation of Consent Can Be Partial, Will Be Factual and Contextual

Last week the Eleventh Circuit held that a consumer can revoke her consent not only orally but also partially. See Schweitzer v. Comenity Bank, No. 16-10498 (11th Cir. Aug. 10, 2017). The rule it announced would be a double-edged sword that makes it more difficult not only for defendants to comply with the TPCA, but also for plaintiffs to satisfy Rule 23.

The plaintiff in Schweitzer provided her cellular telephone number—and, by doing so, her consent to be called at that number—when she applied for a card from the defendant. See Opinion at 3. When she failed to make timely payments on that credit card a year later, the defendant allegedly placed “hundreds” of “automated” calls regarding her debt. The plaintiff answered at least two of those calls. Id. During the first, she said “And, if you guys cannot call me, like, in the morning and during the work day, because I’m working, and I can’t really be talking about these things while I’m at work.” Id. at 4. During the second, she said “Can you just please stop calling? I’d appreciate that, thank you very much.” Id. The defendant continued calling after the first exchange, but stopped calling after the second. Id. Continue reading

District Court Finds a Text Message Sent to Complete a Transaction is Not Telemarketing

As customers increasingly elect text messaging as their preferred means of communication during online ordering, such messages can raise the risk of a potential TCPA claim asserting that the text is “telemarketing” for which the customer did not provide prior express written consent, as required by the statute. A recent and informative decision rejected such a claim, finding that such messages are not telemarketing if they simply “complete a transaction” initiated by the customer. Continue reading

Promotion of Company’s Product on a Prohibited Fax Advertisement Held Insufficient to Sue the Company as the “Sender” Under the TCPA

The Eastern District of Michigan recently rejected an expansive interpretation of “sender” liability for unsolicited fax advertisements alleged to violate the TCPA, ruling that the mere inclusion of a company’s products on fax advertisements sent by a third party is not enough, standing alone, to saddle the company with liability for sending the faxes. Rather, to be liable for the faxes, the company must have taken affirmative steps to advertise its products through the faxes. This common-sense ruling, which further aligns Sixth and Seventh Circuit case law on this important issue, should provide ammunition for companies defending TCPA claims based on faxes sent by others in the distribution chain without the authorization or approval of the defendant. The Court also issued another in the litany of recent decisions confirming the limits on personal jurisdiction over foreign corporations. Continue reading