In Miller v. Merchants Credit Adjusters, Inc., 2015 WL 4205159 (D.Neb.,2015), Judge Bataillon allowed a TCPA Plaintiff to amend his complaint to add the principals upon whose behalf a debt was being collected because, as the Court explained, the TCPA permits respondeat superior theories.
“While section 227(b) does not contain a provision that specifically mandates or prohibits vicarious liability, we clarify that the prohibitions contained in section 227(b) incorporate the federal common law of agency and that such vicarious liability principles reasonably advance the goals of the TCPA.” In re the Joint Petition Filed by Dish Network, LLC, 28 F.C.C.R. at 6587–89 ¶¶ 35, 38 (2013) (citing the 2008 FCC Order and stating “[c]onstruing the TCPA prohibitions contained in section 227(b) to incorporate agency principles is also consistent with our administrative precedent”); see also Bridgeview Health Care Ctr. Ltd. v. Clark, 2013 WL 1154206, at *4–5 (N.D.Ill. Mar. 19, 2013) (“[T]he TCPA creates a form of vicarious liability making an entity liable when a third party sends unsolicited communications on its behalf in violation of the [TCPA].”). “Under the doctrine of respondeat superior, an employer is held vicariously liable for the negligent acts of an employee committed while the employee was acting within the scope of the employer’s business.” Reeder v. State Through Dep’t of Soc. Servs., 578 N.W.2d 435, 439 (Neb.1998). Further the Commission has stated: “Similarly, a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” Federal Communications Commission, Declaratory Ruling, CG Docket No. 02–278, FCC 07–232. A seller that itself has not made a call within the meaning of the TCPA “nonetheless may be held vicariously liable under federal common law principles of agency for violations … that are committed by third-party telemarketers.” In the Matter of the Joint Petition Filed by Dish Network, LLC, et al., 28 F.C.C. Rcd. 6574, 6574 (2013). The FCC further explained that “[p]otential liability under general agency-related principles extend beyond classical agency” to include liability based upon apparent authority and ratification. Id. at 6587. The Ninth Circuit has recently confirmed that a defendant may be held vicariously liable for TCPA violations if the defendant was in an agency relationship with the party who placed the calls. See Gomez v. Campbell–Ewald Co., 13–55486, 768 F.3d 871, 877 (9th Cir.2014) (“a defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller.”) See also, Mey v. Pinnacle Sec., LLC, 5:11CV47, 2012 WL 4009718 (N.D.W.Va.Sept.12, 2012), (the Court found that the defendant could not be held liable for the TCPA violations of its third-party lead generators because there was no evidence that it exercised any control over the lead generator’s manner and means of generating leads, noting the Court reviewed the evidence before making a determination); Hartley–Culp v. Green Tea Servicing, LLC 52 F.Supp.3d 700, 703 (M.D.Penn.2014) (TCPA can impose direct or vicarious liability in connection with calls made by a third party).