Flemming Kristensen v. Credit Payment Services Inc.
879 F.3d 1010
| 9th Cir. | 2018Background
- Kristensen received an unsolicited text (TCPA claim) generated by AC Referral directing recipients to a loan lead site; he did not click the link or apply.
- Lenders (Enova, Pioneer, Credit Payment Services) contracted with LeadPile; LeadPile contracted with Click Media; Click Media contracted with publishers including AC Referral.
- AC Referral purchased phone lists and sent texts via an automated program; consumers who clicked were routed through Click Media to lender sites.
- AC Referral had no contractual relationship or communications with the lenders or LeadPile and did not know them before litigation.
- Kristensen sued lenders, LeadPile, and Click Media asserting vicarious liability under the TCPA via ratification (defendants accepted leads/benefits while failing to investigate). District court granted summary judgment for defendants; Kristensen appealed only the ratification theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants ratified AC Referral’s TCPA violations by accepting benefits and failing to investigate | Kristensen: defendants received and used leads generated by AC Referral’s texts and thus ratified the unlawful texts by accepting benefits while unreasonably not investigating | Defendants: AC Referral was not their agent (no contract/no contact); accepting leads alone is not ratification; Click Media lacked actual or constructive knowledge to trigger investigation | No ratification. Lenders/LeadPile: no agency/purporting agent → not ratifiable. Click Media: agent relationship existed but no knowledge or red flags to impose duty to investigate, so no ratification. |
Key Cases Cited
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (texts fall within TCPA’s definition of a call)
- Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) (FCC and Restatement Agency principles apply to TCPA vicarious liability)
- McDonald v. Sun Oil Co., 548 F.3d 774 (9th Cir. 2008) (standard of review for summary judgment)
- Computel, Inc. v. Emery Air Freight Corp., 919 F.2d 678 (11th Cir. 1990) (application of assumed-risk principle in ratification context)
- Retail Wholesale & Dep’t Store Union Local 338 Ret. Fund v. Hewlett-Packard Co., 845 F.3d 1268 (9th Cir. 2017) (post-class‑period events cannot establish class-period notice)