Mey v. Monitronics International, Inc.
2013 U.S. Dist. LEXIS 114837
| N.D.W. Va. | 2013Background
- Plaintiff Diana Mey alleges Versatile Marketing Solutions, Inc. (VMS) placed 19 calls to her between 2009–2011 after she registered on the national Do Not Call Registry in 2003, and that Monitronics and UTC are vicariously liable under the TCPA for calls made “on behalf of” them.
- Monitronics and UTC moved for partial summary judgment arguing they did not place the calls and therefore are not liable under 47 U.S.C. § 227(c)(5).
- The court stayed briefing pending an FCC Declaratory Ruling about the scope of “on behalf of” liability; the FCC later held sellers may be vicariously liable under federal common-law agency principles (including apparent authority and ratification) even when they did not directly place calls.
- Plaintiff introduced evidence that VMS was an “authorized dealer” and could hold itself out as such, which the court found sufficient to create a triable issue under the FCC’s framework (apparent authority).
- Defendants argued the FCC exceeded its authority and that, as manufacturers rather than sellers, they cannot be liable; the court rejected both contentions.
- The court also found plaintiff’s Rule 56(d) showing credible because limited discovery precluded obtaining facts relevant to a ratification theory; thus summary judgment was inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "on behalf of" liability under § 227(c)(5) reaches entities that did not physically place calls | Mey: "on behalf of" includes vicarious liability under agency, apparent authority, or ratification for sellers who authorize telemarketers | Monitronics/UTC: liability requires direct initiation; they did not place calls | Court: FCC permissibly interpreted TCPA to allow vicarious liability via agency, apparent authority, or ratification; triable issue exists |
| Validity and scope of the FCC Declaratory Ruling interpreting "on behalf of" | Mey: Ruling is entitled to deference and supports plaintiff's theories | Defendants: FCC exceeded its authority in expanding liability | Court: Ruling is a permissible construction under Chevron/City of Arlington and incorporates ordinary agency principles; defendants fail to show it is impermissible |
| Whether defendants are "sellers" (and thus subject to § 227(c)) or merely "manufacturers" immune from liability | Mey: "Seller" is defined by on-whose-behalf calls are made; if calls made on defendant's behalf, they are sellers | Defendants: They are manufacturers, not sellers, so not liable | Court: The regulatory definition ties "seller" to on-whose-behalf calls are made; defendants’ argument fails as a matter of rule interpretation |
| Whether limited discovery justifies denial under Rule 56(d) | Mey: Limited discovery prevented obtaining facts about corporate knowledge and ratification, so summary judgment should be denied | Defendants: Summary judgment appropriate on legal/invocation grounds | Court: Plaintiff made specific Rule 56(d) showing; discovery was necessary for ratification evidence; summary judgment denied |
Key Cases Cited
- Charvat v. EchoStar Satellite, LLC, 630 F.3d 459 (6th Cir. 2010) (found “on behalf of” ambiguous and invited FCC input)
- Dish Network, LLC v. United States, 667 F. Supp. 2d 952 (C.D. Ill. 2009) (interpreting seller as person on whose behalf solicitation is made)
- Meyer v. Holley, 537 U.S. 280 (2003) (Congressional tort statutes incorporate ordinary vicarious liability rules)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment burden-shifting principles)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for genuine dispute of material fact)
- City of Arlington v. FCC, 569 U.S. 290 (2013) (agency’s interpretation of statute within its authority reviewed under Chevron)