Author Topic: Thoughts on multiple defendants in one TCPA call  (Read 191 times)

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ghost

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Thoughts on multiple defendants in one TCPA call
« on: March 21, 2015 11:38:05 PM »
Just wanted to bat around a couple ideas on TCPA violations. Say you have one call from robocaller A selling the services/products of entity 1 and entity 2, both different legal entities with different products/services. How many violations is that? $1500 for the entire call, no matter how many entities/products/services offered? $1500 per each entity?

Now, consider a slightly different scenario: robocall A with a spoofed number offers widgets from a multitude of widget sellers. They DO get permission to call using an auto dialer for all subsequent calls (I think they are catching on...sorta), BUT the first call did not have consent and therefore violates and as the first call was selling widgets, don't are subsequent robocallers 1-10 liable for the first call?
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Brunothe JDBKiller

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Re: Thoughts on multiple defendants in one TCPA call
« Reply #1 on: March 22, 2015 06:46:36 PM »
The statute says per call. You can't collect twice, although you can sue both parties. Let them sort it out as to who pays you. It's 500, very rarely does anybody get 1500. One call can be a violation.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

hamsalad

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Re: Thoughts on multiple defendants in one TCPA call
« Reply #2 on: March 23, 2015 01:18:28 AM »
The statute says per call. You can't collect twice, although you can sue both parties. Let them sort it out as to who pays you. It's 500, very rarely does anybody get 1500. One call can be a violation.

Actually, at least in my circuit, you can recover for more than one violation per call,

Charvat v. NMP, LLC, 656 F. 3d 440 (6th Cir. August 30, 2011) "We therefore conclude that a person may recover statutory damages of $1500 for a willful or knowing violation of the automated-call requirements, § 227(b)(3), and $1500 for a willful or knowing violation of the do-not-call-list requirements, § 227(c)(5) — even if both violations occurred in the same telephone call."

ghost

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Re: Thoughts on multiple defendants in one TCPA call
« Reply #3 on: March 23, 2015 05:16:05 AM »
Well, I think it would be an uphill battle to get damages for 1 call against 2 defendants. I have had calls where for instance, one caller solicits for 2 products or more.


The one curve ball is the one call that then puts  say my number on a list to be called by multiple other people. Say I get a call from company 1 selling their product, sue them and collect, but a week later company 2 calls and I sue them and collect again.
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fisthardcheese

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Re: Thoughts on multiple defendants in one TCPA call
« Reply #4 on: March 23, 2015 10:45:16 AM »
Would OP be able to file two separate suits against each company?  From what I can see, each company soliciting within the phone call are each separately liable through their agent placing the phone call on their behalf.

BIRCHMEIER v. CARIBBEAN CRUISE LINE, INC., Dist. Court, ND Illinois 2012,  "The Court also rejects defendants' contention that liability attaches under the TCPA only to the party that actually placed the call. To offer an example, suppose that A, a well-heeled entity that wants to sell a product or service, stands next to B, an impecunious defendant, and directs A to place unsolicited, prerecorded calls to consumers on their cell phones. Defendants' position, it appears, is that only B, the impecunious dialer, would be liable and that A would get off scot-free. A Congressional enactment that permitted this would be absurd indeed. Fortunately that is not the law under the TCPA. See, e.g., In re Jiffy Lube Int'l, Inc. Text Spam Litig., 847 F. Supp. 2d 1253, 1256-58 (S.D. Cal. 2012); Bridgeview Health Care Center Ltd. v. Clark, 2011 WL 4585028, at *4-5 (N.D. Ill. Sept.30, 2011); Desai v. ADT Sec. Servs., Inc., No. 11 C 1925, 2011 WL 2837435, at *1 (N.D. Ill. July 18, 2011). Plaintiffs have sufficiently alleged each defendant's involvement in making the calls at issue."

I would use this case law to say that each company who directed the 3rd party caller to place calls in violation of the TCPA are liable.   The problem is going to be, as OP has asked, if both defendants are named in one suit, the statutory award is still only $500 per call.  However, if OP sues each company individually for their TCPA violations, would that be proper?
3 Arb Settlements (in AAA, pre-arb hearing)
2 JDB Suits Dismissed With Prejudice (in small claims using counter claims, pro-se)
2 TCPA Settlements (1 using ITS with Draft Complaint pro-se; 1 using consumer attorney)
1 FCRA Settlement (after suit filed, using consumer attorney)

Brunothe JDBKiller

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Re: Thoughts on multiple defendants in one TCPA call
« Reply #5 on: March 23, 2015 01:43:51 PM »
They would probably move the court to join the two suits into one. The judge could then apportion the damages, make each defendant pay half. I don't see any way for double recovery on the one call, though.

Charvat had two violations in the same call, here we have two defendants sharing one violation.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Thoughts on multiple defendants in one TCPA call
« Reply #6 on: March 23, 2015 01:51:42 PM »
This is also about vicarious liability.  To show that the other businesses are liable for the actions of the company that called, you have to show that they either had some sort of control over the company's actions or that they authorized the company to make calls.

Read Thomas v. Taco Bell from the 9th Circuit.

http://scholar.google.com/scholar_case?case=18211454620069010376&q=%22Thomas+v.+Taco+Bell%22&hl=en&scisbd=2&as_sdt=3,41

Brunothe JDBKiller

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Re: Thoughts on multiple defendants in one TCPA call
« Reply #7 on: March 23, 2015 02:26:00 PM »
– 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).
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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