District Court (Cal.) Says TCPA Affords No Right of Contribution or Indemnity

Here, neither the language of the TCPA, nor the legislative history point to the affirmative creation of a right of indemnity or contribution by Congress. Furthermore, in passing the TCPA, Congress established a comprehensive scheme, which also evidences a congressional intent not to authorize additional remedies. Nw. Airlines, 451 U.S. at 93–94 (“The presumption that a remedy was deliberately omitted from a statute is strongest when Congress has enacted a comprehensive legislative scheme including an integrated system of procedures for enforcement.”). Additionally, the fact that the TCPA contemplates treble damages [47 U.S.C. § 227(b)(3)] supports the conclusion that Congress had no intent to include a right of contribution. See Glen Ellyn Pharmacy, Inc. v. Meda Pharm., Inc., No. 09C4100, 2011 WL 6156800, at *2 (N.D. Ill. Dec. 9, 2011) (citing Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639–40 (1981)). Furthermore, fashioning a right of contribution under federal common law is limited to “those few instances where ‘a federal rule of decision is necessary to protect uniquely federal interests.’ ” Mortgages, Inc., 934 F.2d at 213 (quoting Texas Indus., 451 U.S. at 640). Uniquely federal interests generally involve topics “such as the definition of rights or duties of the United States[,] the resolution of interstate controversies,” or admiralty. Nw. Airlines, 451 U.S. at 96. The TCPA does not raise such issues.  In opposition to the Third Party Defendants’ motion, Hightech argues that the Ninth Circuit and the FCC have suggested that indemnity and contribution are available under the TCPA because sellers and third-party marketers may be jointly liable for TCPA violations. (ECF No. 63 at 5–6 (citing Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014); In the Matter of the Joint Petition Filed by Dish Network, LLC et al. for Declaratory Ruling Concerning TCPA Rules, 28 F.C.C. Rcd. 6574 (2013) [hereinafter “Dish Network”].) This argument improperly extends Gomez and Dish Network beyond the specific issue addressed by those decisions— the vicarious liability of a telemarketer (in this case Hightech) for the acts of its agent (in this case the Third Party Defendants). Both the Ninth Circuit and the FCC concluded that “calls placed by an agent of the telemarketer are treated as if the telemarketer itself placed the call.” Gomez, 768 F.3d at 878; see also Dish Network, 28 F.C.C. Rcd. at 6574. Neither decision ultimately evinces any conclusion as to the purported right of a telemarketer to seek indemnity or contribution from an agent, whether under the federal TCPA or federal common law. Therefore, the Court rejects Hightech’s argument that Ninth Circuit and FCC precedent shows that indemnity and contribution are available under federal law for violations of the TCPA.  Like this Court, several courts considering the issue have concluded that claims for contribution and indemnity are not available under the TCPA. See e.g. Envtl. Progress, Inc. v. Metro. Life Ins. Co., No. 12-cv-80907, 2013 WL 12084488, at *3 (S.D. Fla. April 1, 2013); Garrett v. Ragle Dental Lab., Inc., No. 10 C 1315, 2011 WL 2637227 (N.D. Ill. July 6, 2011) (“The TCPA does not create an affirmative cause of action for contribution or indemnification [and] federal common law does not recognize such a cause of action.”); Kim v. Cellco P’ship, No. 1:14-cv-312-JD-SLC, 2016 WL 871256 (N.D. Ill. Jan. 29, 2016) (same); Glen Ellyn Pharmacy, Inc., 2011 WL 6156800, at *2 (same). The Court recognizes that the result may be that the true violator of the TCPA is not held responsible for his conduct, but this is an insufficient reason “for enlarging on the remedial provisions contained in th[is] carefully considered statute[ ].” Nw. Airlines, 451 U.S. at 97. Although Plaintiff could have filed suit against the Third Party Defendants, he chose not to do so. The TCPA “is in essence a strict liability statute” and it is not up to this Court to equitably temper its bite. Alea London Ltd. v. Am. Home Servs., 638 F.3d 768, 776 (11th Cir. 2011). The Court concludes the Third Party Defendants’ Motion for Judgment on the Pleadings as to these claims must be GRANTED.