A District Court judge in Texas has denied a defendant’s motion to dismiss a Telephone Consumer Protection Act case, ruling that the defendant may be held vicariously liable for calls made by a separate entity that was generating leads for the defendant.
The Background: The plaintiff alleges the defendant hired a separate entity to place telephone solicitation calls to potential clients on behalf of the defendant — a law firm looking for individuals to participate in a Camp Lejuene claim. The plaintiff alleges to have received more than one of these types of calls and at least during one call, was transferred to the defendant, which attempted to market legal representation.
- The plaintiff claimed to have received these calls on her residential line without first providing express consent to the defendant. Because the calls were unsolicited, the plaintiff claims the defendant is vicariously liable as the entity that made the calls for violating the TCPA.
- The defendant attempted to argue that the plaintiff’s claims were insufficient to establish vicarious liability. The defendant also argued the plaintiff did not allege that the separate entity was acting on behalf of the defendant or that the plaintiff was transferred to the defendant during one of the phone calls. The defendant also argued that the allegations made by the plaintiff were untrue.
The Ruling: But the plaintiff did allege that the defendant directed the entity to make solicitation calls and that there is a formal agency relationship between the two companies, including a contract that governs the entity’s telemarketing on behalf of the defendant, noted Judge Ronnie L. White of the District Court for the Eastern District of Missouri.
- The plaintiff also alleged the defendant set the criteria for leads and that the entity was responsible for transferring leads to the defendant.
- “In sum, the Court finds Plaintiff has alleged sufficient facts to support a reasonable inference that there was a formal agency relationship between Burger Law and Consumer Legal, or alternatively, that there was apparent authority and ratification, such that Burger Law may be held vicariously liable for Consumer Legal’s phone calls to Plaintiff,” Judge White ruled.