A recent decision from the U.S. District Court for the Southern District of Indiana demonstrates how a defendant may successfully challenge personal jurisdiction when the facts fail to show vicarious liability through a principal-agent relationship.
In Roehrman v. McAfee, LLC, No. 23-2146, 2024 WL 5008043, at *2 (S.D. Ind. Dec. 6, 2024), the plaintiff sued McAfee, claiming TCPA violations based on allegedly unsolicited text messages that advertised McAfee’s services. McAfee moved to dismiss for lack of personal jurisdiction, arguing that it had not sent the texts at issue. Instead, they were sent by subcontractors (or sub-subcontractors) of one of McAfee’s vendors, without authorization by McAfee. Id. After learning of the texts, McAfee had sent cease-and-desist letters, stating that the text messages violated McAfee’s vendor terms. Id.
The court granted the motion and dismissed the case. Initially, it assumed without deciding that the subcontractors were McAfee’s subagents, though the court was “skeptical” and noted the “current facts do not clearly show an agency relationship.” Id. at *4–5. Regardless, the court determined that the subcontractors had not acted within the scope of any actual or apparent authority, given that the text messages violated McAfee’s terms and were sent in violation of the law. Id. at *5. McAfee also had not ratified the subcontractors’ actions because plaintiff had not bought any product in response to the texts, and McAfee took immediate steps to terminate the subcontractors and ensure the texts would cease. Id. at *7. Based on these facts, plaintiff had failed to establish personal jurisdiction because her claims did not arise out of or relate to any conduct by McAfee aimed at Indiana. Nor had she shown that the subcontractors, if they were McAfee’s subagents, acted within the scope of their agency or that McAfee had ratified their actions.
TCPA actions often name parties that did not make any calls or texts, thus requiring plaintiffs to rely on theories of agency and vicarious liability. Roehrman provides a helpful reminder for the defendants in such cases to consider a personal jurisdiction challenge at the outset.
