District Court (Oh.) Finds No Direct or Indirect TCPA Liability for Telemarketing Calls

In Murray v. Choice Energy, LLC, 2015 WL 4204398 (S.D.Ohio,2015), Judge Black found no direct or vicarious liability for an energy company on whose behalf telemarking calls were allegedly improperly made to the TCPA Plaintiffs.

Attached to the crossclaim complaint are a Services Agreement and Turnkey Telemarketing Sales Outsourcing Agreement (“Outsourcing Agreement”) entered into between Choice Energy and Premiere. (Id ., Exs. A, B). The Services Agreement provides that Premiere will provide telemarketing services for Choice Energy and sets forth other terms of the relationship between the parties. (Id., Ex. A). The Outsourcing Agreement provides details of the specific services that Premiere provides. (Id., Ex. B).. . . Plaintiff alleges that “Defendants acted in concert to solicit customers to use Defendant Choice Energy’s electric energy supply services” and that “Defendants acted in a joint manner as a singular entity to solicit consumers to purchase electric supply services from Choice Energy through telemarketing.” (Doc. 1 at ¶¶ 11, 22). Although the complaint often refers to actions undertaken by “Defendants,” the complaint does specify that “Defendant Premiere makes outbound telemarketing calls on behalf of Choice Energy to consumers nationwide during which the telemarketers offer consumers savings on their electric bills” and “Defendant Choice Energy simply outsourced the telesales of its products to Defendant Premiere for its benefit.” (Id. at ¶¶ 15, 22).  Plaintiff registered for the National Do Not Call Registry on March 14, 2014. (Doc. 1 at ¶ 25). Between August and November 12, 2014, Plaintiff received at least ten telephone calls to his landline telephone from the same telephone number. (Id. at ¶ 26). Plaintiff answered the call on more than one occasion and was informed that the call was from Choice Energy. (Id. at ¶ 27). On several occasions, Plaintiff expressly requested to be removed from the calling list and to no longer receive any calls from Defendants. (Id. at ¶ 28). However, Plaintiff continued to receive calls. (Id. at ¶ 29). Defendants placed calls to Plaintiff and others like him without prior consent and failed to honor requests to no longer receive such calls. (Id. at ¶ 21). Defendants also failed to check its calling list against numbers registered on the Do No Call Registry. (Id. at ¶ 20).

The District Court found no direct liability.

Plaintiff argues that he has sufficiently pleaded that Choice Energy is directly liable for the alleged TCPA violations because “it is entirely plausible that Choice and Premiere are not really distinct entities” and because Choice Energy was “so involved” in placing the calls to him. (Doc. 13 at 5–6).³ Plaintiff identifies two factual allegations from the complaint to support the argument that Choice Energy and Premiere are not distinct entities: the two entities operate out of the same office suite and their “officer and management personnel are intertwined.” (Doc. 1 at ¶¶ 16–19). First, citing factors employed in the doctrine of alter ego under Ohio law, Plaintiff contends that the complaint sufficiently alleges that Premiere is the alter ego of Choice Energy such that Choice Energy can be held directly liable. However, despite alleging that “Defendants’ officer and management personnel are intertwined,” the complaint’s factual allegations do not support this conclusion. . . . Second, Plaintiff invokes language from the Declaratory Ruling to argue that Choice Energy was “so involved” with Premiere’s placing of the telephone calls that direct liability is appropriate. . . .Regardless of whether this statement is dicta, the complaint fails to plead any specific factual allegations to support the legal conclusion that Choice Energy was “so involved” in placing the calls that direct liability could be proper. Plaintiff cites four paragraphs that allege “Defendants” placed the calls and failed to honor do-not-call requests, without indicating which particular Defendant took the action in question. (Doc. 1 at ¶¶ 20–23). However, the complaint makes clear that “Defendant Premiere makes outbound telemarketing calls on behalf of Choice Energy” and “Defendant Choice Energy simply outsourced the telesales of its products to Defendant Premiere for its benefit.” (Id. at ¶¶ 15, 22). There are no factual allegations in the complaint that Choice Energy had any active role or involvement in placing the calls, such as giving Premiere “specific and comprehensive instructions as to timing and the manner of the call.”   Accordingly, Plaintiff fails to state a claim for which relief can be granted against Choice Energy under the theory of direct liability.

The District Court found no vicarious liability.

Plaintiff again relies heavily on contractual terms in the Services Agreement and Outsourcing Agreement, documents that the Court cannot consider in ruling on this motion to dismiss. The only two paragraphs of the complaint cited by Plaintiff provide that Choice Energy “outsourced” the telemarketing calls to Premiere. (Doc. 1 at ¶¶ 22–23). However, these allegations are devoid of specific factual allegations indicative of an agency relationship, including that Choice Energy had the right to control and the power to give interim instructions. . . .Plaintiff also invokes several examples provided in the Declaratory Ruling as “guidance” for the existence of apparent authority. In re DISH Network, LLC, 28 FCC Rcd. at 6592–93. Several parties to the Declaratory Ruling petitioned the Court of Appeals for the District of Columbia Circuit for review of that “guidance,” arguing that the FCC exceeded its authority and acted arbitrarily and capriciously. DISH Networks, LLC v. FCC, 552 F. App’x 1 (D.C.Cir.2014). The FCC conceded that the “ ‘guidance’ has no binding effect on courts, that it is not entitled to deference under Chevron …, and that its force is dependent entirely on its power to persuade.” Id. at 2. Several courts have subsequently found that the Declaratory Ruling’s apparent authority “guidance” is not persuasive. Toney, 2014 WL 6757978, at *12; Bridgeview Health Care Ctr. Ltd. v. Clark, No. 09 C 5601, 2014 WL 7717584, at *5 n. 3 (N.D.Ill. Nov. 21, 2014). This Court need not address that issue at this time because Plaintiff did not plead any allegations in the complaint that could plausibly support his apparent authority theory. . . .Finally, Plaintiff argues that Choice Energy ratified the telephone calls placed by Premiere. Once again, Plaintiff relies only on the Services Agreement and Outsourcing Agreement to allege that Choice Energy had the requisite “knowledge of material facts” necessary for ratification. Restatement (Third) of Agency § 4.06. Additionally, Plaintiff has not plausibly pled an agency relationship between Choice Energy and Premiere, which is another necessary element for ratification. See Thomas v. Taco Bell Corp., 582 F. App’x 678, 680 (9th Cir.2014) (“Although a principal is liable when it ratifies an originally unauthorized tort, the principal-agent relationship is still a requisite, and ratification can have no meaning without it.” (quoting Batzel v. Smith, 333 F.3d 1018, 1036 (9th Cir.2003))). Accordingly, Plaintiff has failed to state a claim for relief against Choice Energy under the theory of vicarious liability.