March 9, 2015
Telephone Consumer Protection Act (“TCPA”) class action lawsuits are booming, and plaintiffs are commonly seeking tens, if not hundreds, of millions of dollars in damages. These cases often arise out of a marketing campaign that allegedly made a large number of autodialed or pre-recorded telephone calls and/or sent many text messages. Because the TCPA sets statutory damages at $500 to $1,500 per unlawful call or text, the aggregate financial exposure can be crippling (as an example, on February 26th Life Time Fitness agreed to pay up to $15 million to end TCPA suits). Of corresponding concern, plaintiffs may overreach and sue every entity conceivably connected to these marketing campaigns.

For the company that is one or more steps removed from the marketing campaign, the best strategy to get the case dismissed may be to show that the entity that sent the texts or made the calls was not the company’s agent. A typical example of this scenario is when a company provides a marketing list to a third party, which then makes the unwanted phone calls or sends the texts. Because direct liability is limited to the actual caller or sender of the texts, vicarious liability is the primary battlefield. And, while the scope of vicarious liability under the TCPA has been uncertain, courts are beginning to define the limits with increasing certainty and consistency. Indeed, the Ninth Circuit was one of the first appeals courts to address this issue, and district courts are largely following its lead. One recent example is Thomas v. Taco Bell Corp., in which the Ninth Circuit affirmed dismissal of a TCPA claim for failure to establish vicarious liability at the summary judgment phase.

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