Edith Bowler v. Monitronics International, Inc.
1:13-md-02493
| N.D.W. Va. | Apr 30, 2015Background
- Pro se plaintiff Craig Cunningham alleges he received multiple automated, prerecorded telemarketing calls (2012–2014) from alarm system dealers (Alliance Security, Secure 1) offering free security systems; he did not consent.
- Cunningham amended his complaint to add 2GIG Technologies (alarm manufacturer) and alleges dealers placed calls on 2GIG’s behalf as part of a coordinated scheme that benefitted manufacturers and monitoring companies.
- Alleged facts: dealers used 2GIG’s trade names/trademarks, accessed its customer database, mentioned 2GIG during calls, and operated under distribution/authorized-dealer contracts.
- Claims: violations of the TCPA — prerecorded/automated-call prohibition (47 U.S.C. § 227(b)) and do-not-call/identification requirements (47 U.S.C. § 227(c) and 47 C.F.R. § 64.1200).
- 2GIG moved to dismiss under Rule 12(b)(6), arguing it is not a “seller” under the TCPA and that plaintiff failed to plead vicarious liability. Court reviewed under Iqbal/Twombly pleading standard and F.C.C. guidance on “on behalf of” liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2GIG qualifies as a “seller” under the TCPA (i.e., calls made “on behalf of” it) | Cunningham alleges dealers placed calls on 2GIG’s behalf, used its marks, accessed its database, and had distribution/authorized-dealer agreements | 2GIG says it sells to dealers who then resell on their own account; thus dealers’ calls were for themselves and not on 2GIG’s behalf | Court: Denied dismissal — plaintiff pleaded sufficient facts to plausibly allege dealers acted on behalf of 2GIG, making 2GIG a “seller” at pleading stage |
| Whether plaintiff pleaded vicarious liability (apparent authority/ratification) | Plaintiff alleges authorization to place calls, use of trademarks, access to databases, named 2GIG in calls, and 2GIG’s knowledge of dealer complaints — supporting apparent authority/ratification theories | 2GIG argues absence of manifestations creating apparent authority and insufficient agency/ratification allegations | Court: Denied dismissal — allegations plausibly support apparent-authority/ratification-based vicarious liability under F.C.C. guidance and Mey precedent |
Key Cases Cited
- Mims v. Arrow Fin. Servs., LLC, 132 S. Ct. 740 (2012) (Supreme Court decision summarizing Congress’ findings leading to the TCPA and jurisdictional principles)
- Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (discusses ambiguity of “on behalf of” and invites FCC input on vicarious liability)
- United States v. Dish Network, LLC, 667 F. Supp. 2d 952 (C.D. Ill. 2009) (examines third-party telemarketer liability and seller benefit theory)
- Mey v. Monitronics Int’l, Inc., 959 F. Supp. 2d 927 (N.D. W. Va. 2013) (district court held authorized-dealer arrangements can support apparent-authority vicarious liability under the TCPA)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard requiring factual plausibility)