– Liability of Officers and Employees – In the context of the TCPA, "an officer may be personally liable under the TCPA if he had direct, personal participation in or personally authorized the conduct found to have violate the statute. – “Individuals who directly . . . violate the TCPA should not escape liability solely because they are corporate officers." Texas v. American Blast Fax, Inc., 164 F. Supp. 2d 892, 898 (W.D. Tex. 2001); See Covington & Burling v. Int'l Marketing & Research, Inc., 2003 D.C. Super. LEXIS 29, 2003 WL 21384825, at *6-7 (D.C. Super. 2003). – The extent of “direct participation” is key. An officer or agent of corporation is not liable for torts of others merely because of his office. See, e.g., Norwest Capital Management & Trust Co. v. United States, 828 F.2d 1330, 1344 n. 11 (8th Cir. S.D. 1987). See, e.g., Monsanto Co. v. Hill, 2004 U.S. Dist. LEXIS 30107 (E.D. Mo. May 21, 2004) – See also Brennan v. Nat'l Action Fin. Servs., 2012 U.S. Dist. LEXIS 127397 ( E.D. Mich. Sept. 7, 2012)(granting motion to amend to name corporate officers as TCPA defendants) – Mais v. Gulf Coast Collection Bureau, Inc., 2013 U.S. Dist. LEXIS 65603, 47-48 (S.D. Fla. May 8, 2013)(denying vicarious liability on summary judgment) • TCPA provides for "on behalf of" liability only in section 227(c)(5), not in section 227(b) (1)(A), the provision relevant here. FCC vicarious liability ruling NOT entitled to deference by Court. • Also held that because “the undisputed evidence” showed the defendant was an independent contractor, no vicarious liability under the TCPA
TCPA – Liability of Officers and Employees – FCC April 17, 2013 Ruling – The FCC stated “[W]e clarify that, while a seller does not generally initiate calls made through a third-party telemarketer, it nonetheless may be vicariously liable under federal common law agency-related principles for violations of either section 227(b) or 227(c) committed by telemarketers that initiate calls to market its products or services.” (Para. 48 of ruling) – This may support an argument that for 227(b) claims relating to a creditor and third party debt-collector, there may be vicarious liability even if not in TCPA. (See Mais) – See Applestein v. Fairfield Resorts, Inc., 2009 Md. App. LEXIS 164 (Md. Ct. Spec. App. July 8, 2009)(vicarious liability for TCPA claims for calls for residences based on “degree of control of principal” over agent/independent contractor); Charvat v. EchoStar Satellite, LLC, 676 F. Supp. 2d 668 (S.D. Ohio 2009) (no liability for TCPA calls to residences because plaintiff can’t show defendant had “sufficient control” over calling party).