In Jones v. All American Auto Protection, Inc., et. al., 2015 WL 7566685, at *2-3 (D.Nev. 2015), Judge Hicks found a TCPA defendant not vicariously liable under the TCPA.
Plaintiffs argue that even though Royal did not physically place the calls itself, Royal is still vicariously liable under the TCPA because AAAP placed the calls on Royal’s behalf. The FCC has clarified “on behalf of” liability by stating that, “while a seller does not generally ‘initiate’ calls made through a third-party telemarketer within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency for violations of either section 227(b) or section 227(c) that are committed by third-party telemarketers.”. . . The FCC has held that sellers can be vicariously liable for TCPA violations under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification. Id. at *6; see also Gomez, 768 F.3d at 878. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) Of Agency § 1.01 (2006); see also Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1202 (9th Cir.2007), on reh’g en banc, 550 F.3d 822 (9th Cir.2008) (citing Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859, 866 n. 15 (7th Cir.1998) for the principle that federal common law of agency is derived from the Restatement of Agency); Sun Microsystems Inc. v. Hynix Semiconductor Inc., 622 F.Supp.2d 890, 899 (N.D.Cal.2009) ( “Federal common law is in turn guided by those principles set forth in the Restatement of Agency.”). Agency can be established expressly, via a showing of actual authority, or it can be inferred, by finding apparent authority or ratification. Id. §§ 2.01, 2.03, 4.01. Royal argues that there is no evidence that it is liable under any agency theory – formal agency, apparent authority, or ratification. . . . .Here, while Royal did do things like provide materials, training, and scripts, their conduct did not rise to the level found in Smith, where the court found a formal agency relationship had been alleged. In Smith, the State Farm agents told the telemarketers when, where, and how many people to call, which is a level of control that does not exist here. Furthermore, Plaintiffs never allege that any of the callers identified themselves as calling on behalf of Royal. The only specific plan that Plaintiffs describe is not a Royal product, and AAAP sells products from multiple companies. For these reasons, Plaintiffs have not adequately alleged a formal agency relationship.
Judge Hicks also found no apparent authority or ratification, and, accordingly, granted summary judgment.