2015 U.S. Dist. LEXIS 18783
E.D.N.Y.2015Background
- Plaintiff Brian M. Jackson received an unsolicited text message on his cell phone promoting cruise tickets; he sued under the TCPA alleging the message was sent by Adsource on behalf of Caribbean Cruise Line, Inc. (CCL).
- Plaintiff alleged the message was sent en masse via an automatic telephone dialing system and that recipients were charged for receipt; he sought class relief and statutory damages.
- Procedurally: plaintiff filed multiple complaints and class-certification motions; CCL moved to dismiss under Rule 12(b)(6); plaintiff filed a second amended complaint adding Adsource; CCL’s 12(b)(6) motion was treated as directed to the second amended complaint.
- The court concluded the TCPA imposes liability on the party who "makes" the call but considered whether vicarious liability (common-law agency) can apply to sellers like CCL.
- The court held (1) common-law vicarious liability principles may apply under section 227(b), but (2) the second amended complaint failed to plausibly plead an agency or control relationship between CCL and Adsource, so claims against CCL were dismissed without prejudice to replead agency allegations.
- The court denied sua sponte certification for interlocutory appeal under 28 U.S.C. § 1292(b), finding no substantial ground for difference of opinion given existing authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TCPA §227(b) permits vicarious liability for a seller whose agent placed calls | Vicarious liability should apply so sellers cannot evade TCPA by outsourcing | Section 227(b) assigns liability only to the party who "makes" the call; no "on behalf of" language like §227(c) so no vicarious liability | Court: Common-law agency/vicarious liability is available under §227(b) absent clear congressional intent to the contrary |
| Whether the complaint plausibly alleged an agency relationship (control/interim instructions) between CCL and Adsource | Alleged CCL contracted with and directed Adsource to send messages; Adsource sent messages on CCL's behalf | Contractual relationship alone insufficient; plaintiff must plausibly allege CCL had power to direct/control Adsource's conduct | Held: Plaintiff failed to plead non-conclusory facts showing control or power to give interim instructions; dismissal of CCL for failure to plead agency (with leave to amend) |
| Whether the complaint adequately alleged use of an automatic telephone dialing system (ATDS) | Plaintiff alleged on information and belief that the message was sent en masse, without personalization, from a database capable of random/sequential dialing | Defendant challenged sufficiency | Held: Allegations that the call was mass, non-personalized, and made from a database were sufficient at pleadings stage to allege an ATDS |
| Whether to certify interlocutory appeal under 28 U.S.C. §1292(b) on vicarious-liability question | Plaintiff did not seek certification; court considered CCL’s interest | CCL sought review of the legal question whether §227(b) permits vicarious liability | Held: Court declined certification — no substantial ground for difference of opinion and interlocutory appeal not warranted |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (standard for plausibility on a Rule 12(b)(6) motion)
- Meyer v. Holley, 537 U.S. 280 (statutes are presumed to incorporate common-law vicarious liability unless Congress speaks directly)
- Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir.) (vicarious liability under the TCPA may be imposed under agency principles)
- Russello v. United States, 464 U.S. 16 (interpretive canon: differing language in adjacent statutory provisions presumed intentional)
- Alea London Ltd. v. American Home Servs., Inc., 638 F.3d 768 (TCPA characterized as a strict liability statute)