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

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In Warciak v. Subway Rests., Inc., No. 19-1577, 2020 U.S. App. LEXIS 3487 (7th Cir. Feb. 5, 2020), the Court of Appeals for the Seventh Circuit said that Subway was not responsible under the TCPA for contractually participating in T-Mobile’s text message campaign advertising “T-Mobile Tuesdays”. After reviewing the record, we agree with the district court that Warciak's complaint failed… Read More

In Moser v. Health Ins. Innovations, Inc., No. 17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 132790 (S.D. Cal. Aug. 2, 2019), Judge Hayes certified a TCPA class. Under the TCPA, each plaintiff was injured when an autodialed or prerecorded call was sent to their wireless or residential phone. Whether the autodialed or prerecorded call came from a device located in the offices… Read More

In N.L., an infant by his mother and natural guardian Sandra Lemos v. Credit One Bank, N.A., et.al., (No. 2:17-CV-01512-JAM-DB), 2018 WL 5880796 (E.D. Cal. November 8, 2018), Judge Mendez denied Summary Judgment to a caller under the TCPA and Rosenthal Act. The facts were as follows: A customer of Credit One, D.V., provided a phone number ending in -9847… Read More

In Knapp v. Sage Payment Solutions, Inc., 2018 WL 659016, at *7 (N.D.Cal., 2018), Judge Chesney employed a lengthy analysis too long to repeat here to find in a blast-fax case that, because plaintiff could demonstrate no agency facts on which to pin liability to the alleged principal, the Court lacked personal jurisdiction over the alleged principal/defendant. For the reasons set forth… Read More

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… Read More

In Moser v. Health Insurance Innovations, Inc., 2018 WL 325112, at *8–9 (S.D.Cal., 2018), Judge Hayes found that a TCPA Plaintiff had adequately pleaded agency allegations against a host of defendants allegedly involved in health insurance telemarketing sales.  Judge Hayes then refused to strike a host of allegations made in the Complaint regarding other complaints and sister-state actions. Allegations concerning the… Read More

In Abante Rooter & Plumbing v. Farmers Group, Inc.,  2018 WL 288055, at *6 (N.D.Cal., 2018), Judge Hamilton found that a TCPA Plaintiff had adequately pleaded use of an ATDS used by an alleged Farmers representative in a telemarketing campaign, but found that the Plaintiff had failed to plead enough facts to demonstrate that Farmers should be responsible for the alleged… Read More

In Jones v. Royal Administration Services, Inc., --F.3d --, 2017 WL 3401317, at *6 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit said that federal common law decides agency issues in TCPA telemarketing cases. Royal does not challenge whether there is sufficient evidence in the record to create a genuine issue of material fact as to whether AAAP's… Read More

In Klein v. Just Energy Group, Inc., 2016 WL 3539137, at *2 (W.D.Pa., 2016), Judge Conti granted summary judgment to an energy company who's debt collectors placed wrong-party calls to Klein over Klein's Google VoiP.    Because Klein's VoIP number had been erroneously recorded as the number for P.S., Commerce Energy, Inc. d/b/a Just Energy provided Klein's VoIP number to Collectcents… Read More

In Fitzhenry v. Career Education Corporation, 2016 WL 792312, at *3 (N.D.Ill., 2016), Judge Darrah held that a TCPA Plaintiff properly pleaded derivative liability in a TCPA class action, and held that a professional TCPA Plaintiff could still be a proper class representative.  Judge Darrah held that the facts as pleaded adequately pleaded derivative liability. Defendants argue that Plaintiff has not… Read More

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