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.
At the invitation of the Eleventh Circuit Court of Appeals, the FCC recently filed a letter brief in Palm Beach Golf Center-Boca, Inc. v. Sarris, No. 13-14013 (11th Cir.). The letter brief took the position that defendants can be held directly liable any time their products or services are advertised via a fax that violates the TCPA—even if they did not send the fax or even know that it was going to be sent.
A federal court recently held that a vendor of a VoIP service that allows callers to circumvent caller identification is not secondarily liable for the alleged TCPA violations of the caller that uses that service. See Clark v. Avatar Techs. PHL, Inc., No. 13-2777 (S.D. Tex. Jan. 28, 2014).
On January 22, 2014, the United States Court of Appeals for the District of Columbia Circuit dismissed Dish Network LLC’s petition for review of a 2013 Declaratory Ruling (“Declaratory Ruling”) by the Federal Communications Commission (FCC), which clarified whether a seller may be held vicariously liable under federal common law principles of agency for violations of Sections 227(b) or 227(c) of the TCPA.
A recently proposed class action settlement agreement illustrates the potential litigation perils when any established business relies on outsourced, undercapitalized marketing agents who lack either the assets or insurance to adequately defend TCPA class action litigation. Indeed, the only proposed recovery for the class is an agreement to provide testimony and documentary evidence of the co-defendant’s actual knowledge of the conduct that violated the TCPA, and its alleged authorization of the subject unlawful text messaging.