Court Dismisses TCPA Suit for Failure to Adequately Allege Seller’s Vicarious Liability

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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

Circuits Are Split Over Whether Agency Law Applies to TCPA Fax Cases

On May 9, 2016, the Sixth Circuit reversed a decision of the Northern District of Ohio granting summary judgment to Defendant in a TCPA fax case. Siding & Insulation Co. v. Alco Vending, Inc., No. 15-3551. The district court had accepted Defendant’s argument that it could not be liable under the TCPA for sending the allegedly offending faxes because while it did retain an ad agency (B2B/Caroline Abraham, a combination known well to practitioners in this space) to transmit faxes advertising its services to consenting businesses, it had never authorized transmission of faxes to non-consenting businesses, including the Plaintiff. Finding that under federal common-law agency principles Defendant could not be held vicariously liable for sending the faxes because it neither authorized the transmission of the offending faxes, nor ratified the ad agency’s conduct, the district court entered summary judgment in favor of Defendant. Continue reading

Court Denies Certification In Significant TCPA Case Based on Lack of Ascertainability of the Class and Commonality Issues Because Evaluating Consent Would Require Mini-Trials for Each Individual

Since our December 8, 2015 blog post regarding the scope of vicarious liability, courts have continued to wrestle with the scope of vicarious liability under the TCPA and its ramifications with respect to class certification. A recent decision denying class certification based on lack of ascertainability of the class and commonality issues from the Southern District of Ohio in Barrett v. ADT Corp., No. 15-cv-1348, 2016 U.S. Dist. LEXIS 28767 (S.D. Ohio March 7, 2016), illustrates why class certification is an uphill battle in this context for plaintiffs in TCPA litigation. Continue reading

Seventh Circuit Affirms District Court Ruling That TCPA Fax Regulations Are Not Strict Liability

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

Who Bears Liability For That Call Or Fax? Courts Continue To Wrestle With Direct And Vicarious Liability

Whenever more than one individual or entity is allegedly involved in the “sending” of a fax or the making of a call or text, two key questions in the litigation are: (i) what must be pleaded to state a claim against each party and (ii) if indeed there was a violation, who bears responsibility for it?

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Illinois Federal Court Follows Eleventh Circuit’s Broad Definition of “Sender” in Blast Fax Case

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.

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Court Grants Summary Judgment to Plaintiff Class in Blast Fax Case, Awards More Than $22 Million in Statutory Damages

In September, we reported that a court in the District ofNew Jersey denied the defendants’ motion for summary judgment in a “fax blast” class action, concluding that the defendants could be directly liable under the TCPA for fax advertisements they did not actually send, but rather that were sent by a third-party marketing firm to promote the defendants’ goods or services. See City Select Auto Sales, Inc. v. David Randall Associates, Inc., No. 11-2658, 2014 WL 4755487 (D.N.J. Sept. 24, 2014) (“City Select I”).

Six months later, relying heavily on that earlier ruling, the court has entered summary judgment on behalf of the plaintiff class and awarded it statutory damages of $22,405,000. City Select Auto Sales, Inc. v. David Randall Associates, Inc., et al., No. 11-2658, 2015 WL 1421539 (D. N.J. Mar. 27, 2015) (“City Select II”).

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Fail-Safe Class Fails in the Eastern District of Pennsylvania

In Zarichny v. Complete Payment Recovery Servs., Civ. No. 14-3197, 2015 U.S. Dist. LEXIS 6556 (Jan. 21, 2015), Plaintiff Sandra Zarichny attempted to bring a class action on behalf of two classes against defendants Fidelity National Information Services (“FIS”) and Complete Payment Recovery Services (“CPRS”). Id. at *1-2. Zarichny alleges that the defendants called her eleven times because they incorrectly believed that she owed a debt based on her alleged failure to return textbooks that she rented. Id. at 7-8. In her complaint, Zarichny alleged that the Defendants deliberately harassed her by calling at inconvenient times. Id. at 9. Zarichny alleged that both corporations violated the TCPA and the Fair Debt Collections Practices Act (the “FDCPA”).

Fidelity and CPRS brought a motion to dismiss Zarichny’s complaint and a motion to strike her class allegations, which the court granted in part and denied in part.

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New Jersey Federal Court Rejects FCC’s Dish Network Ruling in Blast Fax Case, Relies on FCC’s Letter Brief in Sarris

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.

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Ninth Circuit Addresses TCPA Text Message Claims

In Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), a panel of the Ninth Circuit Court of Appeals addressed several recurring issues in TCPA litigation, including: the efficacy of Rule 68 offers to moot putative class actions; potential First Amendment defenses; and vicarious liability.

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