In Kristensen v. Credit Payment Services, Inc., 2018 WL 343758, at *3 (C.A.9 (Nev.), 2018), the Court of Appeals for the Ninth Circuit found that 3 lenders and 2 marketing companies were not vicariously liable for an illegal text messaging campaign.
Under these settled principles, the district court did not err in concluding that Kristensen failed to raise a genuine issue of material fact as to whether Credit Payment Services, Pioneer Services, Enova, or LeadPile ratified AC Referral’s unlawful text messaging. It is undisputed that AC Referral did not enter into a contract with any of the lenders or with LeadPile. It is also undisputed that AC Referral did not communicate with or even know of the lenders or LeadPile before the lawsuit was filed. Because AC Referral was neither an agent nor a purported agent of the lenders or LeadPile, AC Referral’s actions do not qualify as ratifiable acts. See Restatement (Third) of Agency §§ 4.01, 4.03. Accordingly, the lenders and LeadPile cannot be held vicariously liable for AC Referral’s unlawful text messages under a ratification theory. Nor did Kristensen raise a genuine issue of material fact as to whether Click Media ratified AC Referral’s unlawful text messages. Although AC Referral was an agent of Click Media, Kristensen presented no evidence that Click Media had actual knowledge that AC Referral was sending text messages in violation of TCPA. Nor is there any basis to infer that Click Media assumed the risk of lack of knowledge, because Kristensen did not present evidence that Click Media “had knowledge of facts that would have led a reasonable person to investigate further,” but ratified AC Referral’s acts anyway without investigation. Id. § 4.06 cmt. d. Kristensen points to the fact that Click Media’s contract with AC Referral stated that AC Referral could use text message marketing and required AC Referral to comply with the TCPA. According to Kristensen, this was sufficient to trigger Click Media’s duty to investigate whether AC Referral was acting in compliance with law. We disagree. The knowledge that an agent is engaged in an otherwise commonplace marketing activity is not the sort of red flag that would lead a reasonable person to investigate whether the agent was engaging in unlawful activities. Because Click Media had no “knowledge of facts that would have led a reasonable person to investigate further,” id., Click Media cannot be deemed to have ratified AC Referral’s actions and therefore is not vicariously liable.