In In re Monitronics Intern., Inc., Telephone Consumer Protection Act Litigation, 2014 WL 316476 (N.D.W.Va. 2014), Judge Kaull ordered discovery of other claims against a TCPA defendant in a TCPA telemarketing claim:
Mey alleges that Versatile Marketing Solutions (“VMS”) acting on behalf of Monitronics and UTC, telephoned her multiple times between November 16, 2009, and December 20, 2011, despite the fact that she had placed her telephone number on the national Do Not Call Registry (“the Registry”). (Docket No. 217 at 7–11.) She argues that these calls violated the TCPA’s prohibition against calls to the Registry’s participants, and that, even though Monitronics and UTC did not physically place the calls themselves, they are vicariously liable under the TCPA because VMS, or VMS’ agents, placed the calls on their behalf. (Id. at 5–6.) Mey further alleges that all Defendants committed both negligent and knowing violations of the TCPA’s provisions. (Id. at 14–15.).
Judge Kaull found the other complaints relevant to the issue of willfulness:
As noted above, Mey contends that complaints and information regarding other dealers are relevant to whether Monitronics’ and UTC’s alleged violations of the TCPA were willful and knowing. (Docket No. 205 at 9–10.) UTC and Monitronics both argue that this is not so. As UTC states, “[u]nder Plaintiff’s theories, whether UTCFS knew or should have known about VMS’s actions may be relevant to whether VMS was an agent of UTCFS, but under that theory, it is not relevant to whether UTCFS willfully or knowingly violated the TCPA.” (Docket No. 209 at 6.). ¶ The FCC’s declaratory ruling made clear that “even when a seller does not ‘initiate’ a call under the TCPA … it may be held vicariously liable for certain third-party telemarketing calls … under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification.” In re Joint Petition, 28 F.C.C. Rcd. at ¶ 28. There is a split of authority in the courts as to what constitutes a knowing and willful violation of the TCPA. Some courts have held that a defendant must have known that its actions were a violation of the TCPA. See, e.g., Texas v. Am. Blastfax, Inc., 164 F.Supp.2d 829, 899–901 (W.D.Tex.2001) (awarding treble damages after finding that “the defendants were well-aware of the TCPA when they began sending unsolicited intrastate fax advertisements in Texas in 1997”); Mfgs Auto Leasing, Inc. v. Autoflex Leasing, Inc., 139 S.W.3d 342, 346–47 (Tex.Ct.App.2004) (“[T]he TCPA is willfully or knowingly violated when the defendant knows of the TCPA’s prohibitions, knows he does not have permission to send a fax … and sends it anyway.”). Others have held that knowledge of the TCPA itself is not necessary. See, e.g., Stewart v. Regent Aset Mgmt. Solutions, No. 1:10–CV–2552–CCJFK, 2011 WL 1766018, at *6–7 (N.D.Ga. May 4, 2011); Sengenberger v. Credit Control Svcs., No. 09 C 2796, 2010 WL 1791270, at *6 (N.D.Ill. May 5, 2010); Am. Home Servs., Inc. v. A Fast Sign Co., 322 Ga.App. 791, 796, 747 S.E.2d 205, 209 (Ga.Ct.App.2013); Charvat v. Ryan, 116 Ohio. St.3d 394, 399–400, 879 N.E.2d 765, 770–71 (Ohio 2007). At least one court has held that knowledge of the TCPA is not required to prove willfulness but is necessary to show that the defendant’s actions were performed “knowingly.” See Covington & Burling v. Int’l Mktg. & Research, Inc., No. CIV. A. 01–0004360, 2003 WL 21384825, at *8 (D.C.Super.Ct. Apr. 17, 2003). The FCC itself “has interpreted ‘willful or knowing’ under the Telecommunications Act (of which the TCPA is a part), as not requiring bad faith, but only that the person have reason to know, or should have known, that his conduct would violate the statute.” Am. Blastfax, Inc., 164 F.Supp.2d at 899; see also In re Dynasty Mortgage, L.L.C., 22 F.C.C. Rcd. 9453, 9470 n. 86 (May 14, 2007) (citations omitted) (“[w]illful … means that the violator knew that he was doing the act in question…. A violator need not know that his action or inaction constitutes a violation; ignorance of the law is not a defense or mitigating circumstance.”). ¶ As noted above, Monitronics and UTC argue that materials and complaints regarding other dealers are not relevant to Mey’s case because, since they did not physically make the telephone calls, they cannot be held liable for willful and knowing violations of the TCPA. They also argue that whether they violated the TCPA willfully and knowingly is irrelevant because Mey is not alleging that they were directly liable for the telephone calls. The undersigned cannot agree. As an initial matter, Mey’s most recent amended complaint alleges that all defendants, not just VMS, knowingly violated the TCPA’s provisions. (Docket No. 217 at 14–15.) Furthermore, the Georgia Court of Appeals recently held a seller liable for willful and knowing violations of the TCPA even though an advertising company, not the seller itself, sent advertising faxes on the seller’s behalf. Am. Home Servs, Inc., 322 Ga.App. at 209, 747 S.E.2d at 796. Given this, the undersigned finds that the information included in the disputed discovery requests is relevant to Mey’s case. Regardless of what Mey must demonstrate to prove her claim that both Monitronics and UTC willfully and knowingly violated the TCPA, the requested discovery is relevant to whether both Monitronics and UTC either were aware of the TCPA or were aware that their dealers, including VMS, were violating the TCPA and whether they took action to stop such alleged violations.