District Court (Mich.) Says ATDS Manufacturer Not Vicariously Liable for its Customers’ TCPA Violations

In Selou v. Integrity Solution Services Inc., 2016 WL 612756, at *4-6 (E.D.Mich., 2016), Judge Parker found that LiveVox was not vicariously liable for the TCPA violations perpetrated by entities to whom it sold its technology.

Plaintiff appears to be alternatively arguing in her response brief that LiveVox can be held vicariously liable for the alleged TCPA violations. (See ECF No. 52 at 693-94.) In fact, in her Amended Complaint, Plaintiff summarily alleges that all defendants are vicariously liable for the violations of the statute. (Am. Compl. ¶¶ 117-122.) The FCC has issued a declaratory ruling advising that a company may be vicariously liable for calls sent “on its behalf.” In re Dish Network, LLC, 28 FCC Rcd. 6574, 2013 WL 1934349 (May 9, 2013). Nevertheless, even if vicariously liability could attach to the entity whose involvement is limited to providing the ATDS, Plaintiff’s allegations are insufficient to attach vicarious liability to LiveVox.  In its declaratory ruling in In re Dish Network, LLC, the FCC advised that “a seller may be liable for violations by its representatives under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification.” 28 FCC Rcd. 6574, 6584, 6586, 2013 WL 1934349, at *9, 11 (“We find that vicarious seller liability under federal common law agency principles is also available for violations of section 227(b).”). . . . While the Court must accept Plaintiff’s factual allegations in her Amended Complaint as true, Erickson, 551 U.S. at 94, this presumption does not apply to Plaintiff’s legal conclusion that LiveVox is vicariously liable for CSS’ and Integrity’s alleged TCPA violations. Plaintiff’s Amended Complaint is devoid of facts supporting this legal conclusion. The facts alleged in no way suggest that LiveVox manifested assent to CSS or Integrity for CSS or Integrity to act on LiveVox’s behalf and subject to LiveVox’s control. Nor do the facts support the conclusion that CSS or Integrity had actual or apparent authority to act on LiveVox’s behalf. The facts also do not indicate that LiveVox ratified the actions of CSS or Integrity or accepted the benefits of their actions. Plaintiff says nothing in her response brief to lead this Court to believe that she could cure this defect by amending her pleading.   For these reasons, the Court also concludes that Plaintiff fails to state a viable TCPA claim against LiveVox.