In Melito v. American Eagle Outfitters, Inc., 2015 WL 7736547, at *4-5 (S.D.N.Y., 2015), Judge Caproni dismissed a TCPA class action against Experian for unsolicited texts sent by American Eagle in connection with a marketing campaign.  First, the Court found no direct liability under the TCPA.

The plain language of section 227(b)(1)(A)(iii) imposes liability upon persons that “make” a telephone call or text. 47 U.S.C. § 227(b)(1)(A)(iii). Although the Second Circuit has not weighed in, many of the courts that have considered this provision have held that the verb “make” imposes civil liability only on the party that places the call or text. Jackson v. Caribbean Cruise Line, Inc., 88 F. Supp. 3d 129, 135 (E.D.N.Y. 2015) (“By its terms, 47 U.S.C. § 227(b)(1)(A)(iii), assigns civil liability only to the party who ‘makes’ a call.”); Kristensen v. Credit Payment Servs., 12 F. Supp. 3d 1292, 1301–02 (D. Nev. 2014) (associating the party who “made” the call with “the party who actually sent the text message to [Plaintiff]”); Thomas v. Taco Bell Corp., 879 F. Supp. 2d 1079, 1084 (C.D. Cal. 2012), aff’d, 582 F. App’x 678 (9th Cir. 2014) (“The plain language of the TCPA assigns civil liability to the party who ‘makes’ a call” and “[d]irect liability is inapplicable here as the parties do not dispute that the actual sender of the text was … a separate provider of text-message based services ….”).  In the TAC, Plaintiffs fail to allege adequately that Experian actually sent any texts. Instead, Plaintiffs assert in an entirely conclusory fashion that Experian “caused texts to be sent on behalf of AEO,” TAC ¶ 33, and that, as to each of the individually-named Plaintiffs, “AEO and Experian are responsible for sending” the Spam Texts and have sent a large number of Spam Texts to persons in New York, Florida, California and throughout the United States. Id. ¶¶ 50–51, 63–64, 70–71, 82–83. Plaintiffs’ class action allegations are similarly conclusory, alleging that there is a class comprised of: “All persons in the United States who: (a) received a text message sent by Experian and/or a third party acting on Experian’s behalf.” See id. ¶ 86 (defining the purported “Experian Spam Text Subclass” and the “Experian Revocation Subclass”).   The factual allegations culminating in those conclusory assertions are an interesting mix of active and passive voice allegations; the TAC uses the active voice to allege who took each step up to the critical allegation regarding who sent the offending text messages: . . . The absence of an allegation of who actually “made” or physically placed the text messages is not lost on the Court. Plaintiffs’ conclusory assertions that Experian sent or caused the text message to be sent is simply a legal conclusion devoid of further factual enhancement. Because Plaintiffs do not plead that Experian “made,” i.e., physically placed or actually sent, the text messages, the TAC fails to state a claim that is plausible on its face under section 227(b)(1)(A)(iii) of the TCPA.  Finally, Plaintiffs argue that they have adequately stated a claim against Experian because “a defendant may be so involved in the placing of a specific telephone call as to be directly liable for initiating it—by giving the third party specific and comprehensive instructions as to timing and the manner of the call, for example.” Pls. Opp’n at 8. For this argument, the Plaintiffs appear to rely on dicta from an FCC Ruling, In the Matter of the Joint Petition filed by Dish Network LLC, the United States of America, and the States of California, Illinois, North Carolina, and Ohio for Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules, that discusses whether vicarious liability could be imposed under section 227(b) of the TCPA. 28 FCC Rcd. 6574, 6583 (2013) (“And one can imagine a circumstance in which a seller is so involved in the placing of a specific telephone call as to be directly liable for initiating it — by giving the third party specific and comprehensive instructions as to timing and the manner of the call, for example.”). This dicta, however, is directed at the FCC’s interpretation of the word “initiate” as used in a different provision of the TCPA, section 227(b)(1)(B) and implementing regulation section 64.1200(c)(2), in the context of the liability of “sellers,” and is, therefore, not directly applicable to the instant case. As discussed previously, the specific provision at issue in this case is section 227(b)(1)(A)(iii), which does not use the verb “initiate” but instead uses the verb “make.” Moreover, as Dish Network discusses, “seller” is defined in the implementing regulations section 64.1200(f)(9), 28 FCC Rcd. at 6583 n.80, as “the person or entity on whose behalf a telephone call or message is initiated for the purpose of encouraging the purchase … of … goods[ ] or services, which is transmitted to any person.” 47 C.F.R. § 64.1200(f)(9). The relied-upon dicta is thus also inapplicable because the allegations in the TAC arguably qualify AEO, not Experian, as a “seller” under this definition, inasmuch as the alleged text messages advertised and encouraged the purchase of AEO-related products.  In short, Plaintiffs fail to plead adequately that Experian is directly liable for violations of section 227(b)(1)(A)(iii) of the TCPA.

The Court also found no vicarious liability under the TCPA.

Experian is correct that Plaintiffs fail to allege adequately any agency relationship between Experian and an individual or entity, Archer or otherwise, upon which to base vicarious liability. Again, noting Plaintiffs’ use of passive voice in their TAC, it is difficult to discern the exact individual or entity that Plaintiffs allege actually sent the text messages. . . .Significantly absent from Plaintiffs’ allegations, however, is any factual content regarding the relationship between Experian and Archer. Plaintiffs seem to suggest that the allegations that Experian “had the right to control the sending of the texts” and “in fact controlled and even scheduled the sending of each segment of the texts” are sufficient to plead Experian’s vicarious liability for Archer’s actions. Pls. Opp’n at 12. Indeed, Plaintiffs argue, without support, that “[w]hether Experian Marketing sent the texts via Archer’s messaging platform or whether Archer sent the texts after Experian Marketing directed it to do so is irrelevant to the issue of vicarious liability.” Id. But to plead vicarious liability under the TCPA in accordance with traditional tort principles, Plaintiffs must allege some facts regarding the relationship between an alleged principal and agent (or an alleged agent and sub-agent) and cannot simply allege general control in a vacuum. Cf. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 878 n.6 (9th Cir. 2014), cert. granted, Campbell-Ewald Co. v. Gomez, 135 S. Ct. 2311 (2015) ( “We need not determine whether [the defendant] constitutes a seller under this definition, as we conclude that vicarious liability turns on the satisfaction of relevant standards of agency, irrespective of a defendant’s nominal designation” and “such a construction would contradict ‘ordinary’ rules of vicarious liability, … which require courts to consider the interaction between the parties rather than their respective identities.” (citation omitted)). Mere conclusory allegations that Archer was Experian’s agent or that Experian had the right to control the sending of the texts, without more, fails to plead an agency relationship (between Experian and Archer or any other entity) sufficient to allege vicarious liability under section 227(b)(1)(A)(iii) of the TCPA. Jackson, 88 F. Supp. 3d at 138–39 (“[E]ven viewing the allegations in a light most favorable to the [p]laintiff … , the [c]ourt concludes that the [p]laintiff’s non-conclusory allegations with regard the agency relationship between [defendant] and [a separate company that allegedly sent the text message on behalf of defendant] fail to ‘nudge’ his claims against [defendant] ‘across the line from conceivable to plausible ….’ Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In this regard, absent from the second amended complaint is any allegations that [defendant] had the power to give ‘interim instructions’ to [the separate company], or any non-conclusory suggestion of ‘direction’ or ‘control’ by [defendant] of [that company].”).