We have previously written about decisions that dismissed TCPA claims because plaintiffs could not allege or prove facts establishing that the party making the offending calls was acting as an agent for the named defendant. The Northern District of Illinois recently applied these principles to dismiss claims against a defendant for lack of personal jurisdiction.
Another court decision reminds us that conclusory allegations that an agency relationship exists should not be sufficient to impute TCPA liability on the alleged beneficiary of a messaging campaign. Pleadings that lack plausible allegations showing “some degree of control over who sent the text and the manner and means by which it was sent” can lead to dismissal – with prejudice, if the plaintiff has run out of a reasonable number of opportunities to amend.
The Seventh Circuit recently issued an opinion with significant implications for defendants evaluating the prospects for due process challenges to awards of statutory damages under the TCPA, as well as defendants facing claims of agency liability for the acts of their vendors or contractors. In an opinion by Judge Easterbrook, the Seventh Circuit ordered the District Court to reexamine a “whopping” $280 million penalty against DISH Network, LLC (“DISH”) for violations of the TCPA, the Telemarketing Sales Rule, 16 C.F.R. § 310 (the “Rule”), and related state laws. U.S. v. DISH Network, LLC, 2020 WL 141844, at *8 (7th Cir. Mar. 26, 2020). Although the Seventh Circuit suggested in dicta that the damages award was constitutionally acceptable, it held that the District Court erred because it only considered DISH’s “ability to pay” when calculating the award. Id. The court stated that the analysis should “start from harm rather than wealth, then add an appropriate multiplier.” Id.
It can fairly be said that the statutory definition of “automatic telephone dialing system” (“ATDS”) has generated far more questions than answers—for courts and litigants alike. This is especially true in the wake of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), where the D.C. Circuit set aside the FCC’s sweeping interpretation of the ATDS definition, and thus handed the baton back to the Commission to provide guidance on what is (and is not) an ATDS. But almost two years later, the FCC has yet to issue its ruling.
In the many TCPA cases that turn on the definition of ATDS, defendants may wish to file a motion to stay the action so that the court can await guidance from the FCC’s anticipated ruling on this issue. Indeed, over the course of the last year, multiple federal judges, at least in Florida, have been willing to grant such motions, particularly because the ATDS definition is also center stage in an appeal pending before the Eleventh Circuit. See Glasser v. Hilton Grand Vacations Co., LLC, No. 18-14499 (11th Cir. filed Oct. 24, 2018).
The Western District of Oklahoma recently granted a plaintiff’s motion for summary judgment against NorthStar Alarm Services, LLC (“NorthStar”) in a certified class action. The court held, in part, that NorthStar was vicariously liable for telemarketing calls that sales lead generator Yodel Technologies, LLC (“Yodel”) placed on its behalf. Braver v. NorthStar Alarm Services, LLC, No. 17-cv-0383, 2019 WL 3208651, at *1 (W.D. Okla. July 16, 2019). The case illustrates the factors that one court found relevant in a particular factual context when assessing vicarious liability issues related to a lead generator’s telemarketing calls. Continue reading
TCPA Blog senior editor Michael Daly was quoted in a Law360 article regarding the Fourth Circuit’s ruling in Krakauer v. Dish Network, which affirmed the certification of Do-Not-Call claims and the award of $61 million in statutory damages.
Mike and others predicted that plaintiffs will try to invoke the Fourth Circuit’s decision in other kinds of TCPA cases. Mike explained that “[p]laintiffs will no doubt take out of context the Fourth Circuit’s statement that ‘TCPA claims’ are ‘conducive’ to class treatment.” “But that would be painting with too broad a brush,” he explained, because “other species of TCPA claims . . . necessarily turn on inherently individualized questions of consent and revocation of consent, among other things.”
The Fourth Circuit’s decision also serves as an important reminder that plaintiffs may try to hold businesses liable for calls that their vendors make. Mike explained that “the Krakauer decision is—as if anyone still needed one—a wake-up call.” He cautioned that business must be “hypervigilant about what they and their vendors are doing. They should not simply rely on contractual provisions disclaiming agency and requiring compliance and indemnification.”
Plaintiffs often employ the spaghetti-against-the-wall tactic of asserting every conceivable claim against every conceivable defendant. But as a recent decision from the Southern District of California confirms, this strategy is not without risk.
In Ewing v. Encor Solar, LLC, No. 18-2247, 2019 WL 277386 (S.D. Cal. Jan. 22, 2019), the court dismissed a TCPA claim with leave to amend because the plaintiff had failed to allege a fundamental fact: which of the six named defendants actually called him. Continue reading
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.