Topic: Direct Liability

Court Dismisses Claims that Shopping Platform was Directly or Vicariously Liable for Retailer’s Texts

The Northern District of California recently granted a motion to dismiss, finding the plaintiff failed to plausibly allege that e-commerce platform Shopify was directly or vicariously liable for the alleged TCPA violations of a retailer using the platform. Sheski v. Shopify (USA) Inc., No. 19-CV-06858, 2020 WL 2474421 (N.D. Cal. May 13, 2020).

The plaintiff filed a putative class action complaint alleging, among other claims, that the defendants Shopify (USA) Inc. and Shopify Inc. (collectively, “Shopify”) violated the TCPA due to Shopify’s “unlawful practice of making, facilitating and participating in an unauthorized text message marketing campaign en masse to consumers’ cellular telephones.”

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D.C. High Court Holds that Businesses Do Not Face Strict Liability for Junk Faxes Advertising Their Products, Agency Principles Apply

FDS Restaurant, Inc. v. All Plumbing, Inc., No. 16-CV-1009, 2020 WL 1465919 (D.C. Mar. 26, 2020)

In a recent TCPA junk-fax case, the District of Columbia Court of Appeals drew the intuitive conclusion that businesses do not incur TCPA liability whenever their products are advertised via fax. The proposition that strict vicarious liability does not apply to advertised businesses is a simple one, but—as the D.C. Court of Appeals noted—courts have diverged as to the proper standard to apply for assessing vicarious liability for faxes sent in violation of the TCPA. In FDS Restaurant, the D.C. Court of Appeals had to decide for itself which standard to apply in this context.

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Court Grants Plaintiff’s Motion for Summary Judgment on Vicarious Liability Issues

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 “Court Grants Plaintiff’s Motion for Summary Judgment on Vicarious Liability Issues”

Nasty Political Campaign Results In Potential Liability For VoIP Providers But Not Voice Actors

As we approach the November 2018 midterm elections, we expect that we will once again see (i) an uptick in the volume of political calls; (ii) a reminder from the FCC that the TCPA applies to those calls (emphasizing that such calls are prohibited if made to cell phones without the consent of the called party, and that all prerecorded calls to cell phones or landlines must comply with certain identification and line release requirements); and (iii) a handful of new lawsuits filed against campaigns, candidates, and committees that allegedly failed to heed the FCC’s warning—all topics we have covered here before. Two recent decisions from a federal court in West Virginia pertaining to the 2016 election serve as a reminder that these lawsuits can linger long after the election ends

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Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory

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 “Ninth Circuit Affirms Summary Judgment for Defendants, Rejects Plaintiff’s Vicarious Liability Theory”

Missouri District Court Rules that App Developer Is Not Subject to Personal Jurisdiction Based on App Users’ Contacts with the Forum

A recent ruling from the Eastern District of Missouri provides encouraging news for app developers who may be sued under the TCPA for messages sent by users of their app. The court declined to exercise personal jurisdiction over the defendant, the photo sharing app developer Everalbum, Inc., because the text messages sent to plaintiffs in the forum state were sent by users of the app, and Everalbum itself directed no messages into the forum. See Figueroa v. Everalbum, Inc., No. 17-1393, 2017 WL 4574797 (E.D. Mo. Oct. 12, 2017). The decision is a favorable one for software companies whose users may initiate SMS communications with persons throughout the country, thus implicating the TCPA.

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Dish Network Seeks New Trial After $20 Million TCPA Jury Verdict

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 “Dish Network Seeks New Trial After $20 Million TCPA Jury Verdict”

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

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

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

FCC Releases Order Denying Club Texting’s 2009 Petition on Text Broadcaster Liability Standards

On January 11, 2016, the FCC’s Consumer and Governmental Affairs Bureau (“Bureau”) acted on a petition filed in 2009, and denied Club Texting, Inc.’s (“Club Texting”) petition for declaratory ruling, which asked the FCC to clarify that text broadcasters are subject to the same TCPA liability standard as that applied to fax broadcasters. See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Petition of Club Texting, Inc. for Declaratory Ruling, Order, CG Docket 02-278 (Jan. 11, 2016) (“Jan. 11 Order”); see also Club Texting, Inc. Petition for Declaratory Ruling that Text Broadcasters Are Not “Senders of Text Messages Under § 227(b)(1) of the Telephone Consumer Protection Act, CG Docket 02-278 (Apr. 25, 2009) (“Club Texting Petition”).

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