The Ninth Circuit recently affirmed summary judgment for five defendants—three payday lenders and two lead-generation vendors—in a certified class action where it was undisputed that the text message at issue violated the TCPA. See Kristensen v. Credit Payment Servs. Inc., 879 F.3d 1010 (9th Cir. 2018). Rejecting Plaintiff’s ratification theory, the court held that the defendants were not vicariously liable for the actions of a non-party “publisher,” AC Referral—the entity that initiated the text. The Ninth Circuit’s opinion provides useful guidance as to scope of TCPA liability for all players involved in an SMS campaign, particularly those that do not actually press “send.” Continue reading
Dish Network LLC (“Dish”) recently filed a motion for a new trial after a jury found Dish liable for more than 51,000 calls to 18,000 class members, resulting in an award of $20.5 million.
In Krakauer v. Dish Network LLC, No. 14-0333 (M.D.N.C.), the plaintiff alleged that he had received telemarketing sales calls from an authorized dealer of Dish despite registering his number on the National Do Not Call Registry. He further alleged that these calls continued even after his telephone number was placed on both Dish’s and its authorized dealer’s internal Do Not Call Lists. Before trial, the court certified two classes: the first consisting of persons who received telemarketing calls despite having their telephone numbers on the National Do No Call Registry, and the second consisting of persons who received telemarketing calls despite having their telephone numbers on the internal Do Not Call Lists of Dish or its authorized dealer. Continue reading
The Northern District of Ohio recently dismissed a TCPA action because the plaintiff failed to allege any facts from which the court could conclude that the defendant was directly or vicariously liable for the alleged calls. See Seri v. CrossCountry Mortgage, Inc., No. 16-01214, 2016 WL 5405257 (N.D. Ohio Sept. 28, 2016).
In Seri, the plaintiff alleged that defendant Direct Source – a telemarketing vendor – made at least twenty unsolicited telemarketing calls to the plaintiff’s cellular telephone using an ATDS. He further alleged that defendant CrossCountry Mortgage, Inc. (“CrossCountry”) regularly had third-party telemarketers make telemarketing calls on its behalf and had an “extensive relationship” with Direct Source. Continue reading
On March 21, 2016, the Seventh Circuit issued its decision in Bridgeview Health Care Ctr., Ltd. v. Clark, Nos. 14-3728 & 15-1793, holding that agency rules apply to determine whether a fax is sent “on behalf of” a principal and affirming the district court’s decision that the defendant was liable only for those faxes he authorized.
As previously reported, the lead issue on appeal in this fax-based TCPA case involved whether a defendant is liable for all faxes sent by the fax broadcaster or another third party, or only for those faxes the fax broadcaster or third party was authorized by the defendant to send (in this case, only within a 20-mile radius of the defendant’s businesses). Continue reading
Through prior posts (see here, here, and here), we have monitored the FCC’s somewhat perplexing distinction between calls and faxes in the context of analyzing direct and vicarious liability under the TCPA. Just two months ago, the FCC’s position, as originally set forth in a letter brief, was adopted by the Eleventh Circuit in Palm Beach Golf Center-Boca, Inc. v. Sarris, 781 F.3d 1245 (11th Cir. 2015) (“Sarris”). The Sarris court held that “a person whose services are advertised in an unsolicited fax transmission, and on whose behalf the fax is transmitted, may be held liable directly” under the TCPA.
As we previously reported, on July 17, 2014, the FCC filed a letter brief in Palm Beach Golf Center-Boca, Inc. v. Sarris, No. 13-14013 (11th Cir.) (“Sarris”), in which it took the position that entities can be held directly liable under the TCPA whenever their products or services are advertised in an unsolicited fax—even if they did not actually send the fax, and even if they did not know the fax was going to be sent. The FCC’s letter brief stood in marked contrast to its decision last year in In re Joint Petition Filed by Dish Network, LLC, 28 F.C.C. Rcd. 6574 (2013) (“Dish Network”), where the FCC had limited direct liability to only “telemarketers” that “initiate” calls, and otherwise applied agency principles to determine whether “sellers” might be vicariously liable for calls made on their behalf. As readers may recall, the FCC’s letter brief does not articulate a policy reason why a “seller” in the voice call context should receive more protection than an entity whose goods and services are promoted through a fax advertisement. But whatever the merits of the letter brief, it has yet to be cited by the Eleventh Circuit (which has heard argument but not yet issued an opinion) or, at least for the past few months, any other court.