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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.,, (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

In Harrington v. Roundpoint Mortgage Servicing Corporation, 2016 WL 659331, at *2-4 (M.D.Fla., 2016), the District Court denied a creditor's motion to dismiss a TCPA action, disagreeing with the argument that the TCPA prohibits the imposition of vicarious liability. According to Plaintiff, RoundPoint placed nonemergency calls to his cell phone numbers using an automated dialer or a prerecorded voice without… Read More

In Selou v. Integrity Solution Services Inc., 2016 WL 612756, at *4-6 (E.D.Mich., 2016), Judge Parker found that LiveVox was not vicariously liable for the TCPA violations perpetrated by entities to whom it sold its technology. Plaintiff appears to be alternatively arguing in her response brief that LiveVox can be held vicariously liable for the alleged TCPA violations. (See ECF… Read More

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… Read More

In Jones v. All American Auto Protection, Inc., et. al., 2015 WL 7566685, at *2-3 (D.Nev. 2015), Judge Hicks found a TCPA defendant not vicariously liable under the TCPA. Plaintiffs argue that even though Royal did not physically place the calls itself, Royal is still vicariously liable under the TCPA because AAAP placed the calls on Royal's behalf. The FCC has… Read More

In Ghawi v. Law Offices Howard Lee Schiff, P.C., 2015 WL 6958010, at *3-5 (D.Conn., 2015), Judge Arterton denied summary judgment to a TCPA defendant, rejecting the argument that the calls were not to a cellular telephone so long as the debtor told the caller that the calls were routed to a a cell phone. All Defendants argue that Mr. Ghawi's… Read More

In Keating v. Peterson's Nelnet, LLC, 2015 WL 4430355 (6th Cir. 2015), the Court of Appeals for the Sixth Circuit affirmed summary judgment in favor a TCPA defendant on whose behalf unauthorized text messages were sent.  First, the Sixth Circuit found that texts were "calls" under the TCPA. Neither the plaintiff nor the defendants contest the inclusion of text messages… Read More

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… Read More

In Murray v. Choice Energy, LLC, 2015 WL 4204398 (S.D.Ohio,2015), Judge Black found no direct or vicarious liability for an energy company on whose behalf telemarking calls were allegedly improperly made to the TCPA Plaintiffs. Attached to the crossclaim complaint are a Services Agreement and Turnkey Telemarketing Sales Outsourcing Agreement (“Outsourcing Agreement”) entered into between Choice Energy and Premiere. (Id… Read More

In Hartley-Culp v. Green Tree Servicing, LLC, --- F.Supp.3d ----, 2014 WL 5088230 (M.D.Pa. 2014), Judge Munley held that the TCPA imposed vicarious liability on Fannie Mae for the alleged TCPA violations of its servicer. The facts were as follows: Beginning on August 29, 2013, plaintiff received at least twenty-six (26) phone calls from Defendant Resolve Solution Services Corporation (hereinafter… Read More

In Gomez v. Campbell–Ewald Co., --- F.3d ----, 2014 WL 4654478 (9th Cir. 2014), the Court of Appeals for the 9th Circuit reversed the district court's summary judgment in favor of a TCPA defendant marketing company. The message was the result of collaboration between the Navy and the Campbell–Ewald Company,FN1 a marketing consultant hired by the Navy to develop and execute a… Read More

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