CEB Prac. Guide § 2B.34: Vicarious Liability

In Lucas v. Telemarketer Calling From (407) 476-5680, 2014 WL 3845893 (S.D.Ohio 2014), Judge Siegel stayed a TCPA telemarketing case to allow the FCC to rule on Plaintiff’s novel liability theory. It is essential to understand who the current Defendants are in this litigation and their alleged relationship to one another. The Accuardi Defendants consist of three corporate entities and… Read More

In Thomas v. Taco Bell Corp., --- Fed.Appx. ----, 2014 WL 2959160 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit held that Taco Bell could not be held vicariously liable for the TCPA violations of entities it hired to send text messages. Indeed, in a recent declaratory ruling, the FCC expressly agreed with the district judge in… Read More

In Kristensen v. Credit Payment Services, 2014 WL 1256035 (D.Nev. 2014), Judge Gordon denied defendant’s Motion to Dismiss a TCPA class action, finding that vicarious liability might exist.  The facts were as follows: The Complaint alleged that the website in the text message—www.lend5k.com—automatically redirected to websites owned and operated by CPS and/or its agents who promoted CPS's payday loan products.… Read More

In In re: Portfolio Recovery Associates, LLC, Telephone Consumer Protection Act Litigation, here, Judge Houston held that the Plaintiff had adequately pleaded vicarious liability under the TCPA, and refused, at the pleadings stage, to strike Plaintiff’s prayer to recovery attorneys’ fees under the TCPA to the extent permitted by Code of Civil Procedure § 1021.5. In opposition, plaintiffs contend their… Read More

Here is the FCC’s ruling regarding agency liability under the TCPA.  The FCC declared that sellers “may be held vicariously liable under federal common law principles of agency including not only formal agency, but also principles of apparent authority and ratification” – opining that vicarious liability would incentivize companies to police TCPA compliance by third party vendors and telemarketers.  The FCC… Read More

This one's got it all, TCPA fans.   In Mais v. Gulf Coast Collection Bureau, Inc., --- F.Supp.2d ----, 2013 WL 1899616 (S.D.Fla. 2013), Judge Scola decided not to follow any of the FCC regulations on the TCPA that otherwise apparently would have barred Plaintiff’s TCPA claims. The facts were as follows:  In 2009, Plaintiff Mark Mais went to the… Read More

Ed.:  to my TCPA readers, this case has it all . . . In Jamison v. First Credit Services, Inc. --- F.R.D. ----, 2013 WL 1248306 (N.D.Ill. 2013), Judge Kendall denied a motion for class certification in TCPA case.  Plaintiff was a convicted felon. He pled guilty in 2008 to access device fraud. Specifically, he was part of a scheme to steal credit… Read More

In Martin v. Cellco Partnership, 2012 WL 5048854 (N.D.Ill. 2012), Judge Guzman found that an in pro per Plaintiff's TCPA claim against his cell phone carrier survived an FRCP 12b6 Motion arising out of autodialed debt collection calls placed by his creditor to his cell phone. Verizon claims the TCPA claims against it must fail because it cannot be held liable for… Read More

In Brennan v. National Action Financial Services, Inc., 2012 WL 3888218 (E.D.Mich. 2012), Judge Cleland granted leave to amend to allow individual officers of the debt collection agency to be named to the lawsuit as defendants under the TCPA. It is unsettled as to whether officers can be held personally liable under section 217 of the TCPA. The few courts… Read More

In Thomas v. Taco Bell Corp., --- F.Supp.2d ----, 2012 WL 3047351 (C.D.Cal. 2012), Judge Carney found that the TCPA imposes vicarious liability, but found that none existed under the facts of the case. Section 227(b)(1)(A)(iii) of the TCPA provides as follows:  It shall be unlawful for any person within the United States, or any person outside the United States… Read More

In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More

In Desai v. ADT Sec. Services, Inc., 2011 WL 2837435 (N.D.Ill. 2011), Judge Buklow held that the TCPA can impose respondeat superior liability.   First, ADT argues that it can be held liable only if it “made” or “initiated” the calls in question. As ADT points out, the TCPA provisions invoked by plaintiffs make it unlawful (subject to exceptions not… Read More

In a comment submitted to the Federal Communications Commission, the FTC urged its sister agency to hold that sellers of goods and services should be held responsible for sales calls made by others on their behalf, even if the seller did not physically place the calls. The FTC stressed that the FCC should not allow such sellers to escape liability… Read More