TCPA decision: personal liability of defendant’s director – media, telecommunications, IT, entertainment

United States: TCPA decision: personal liability of the defendant’s director

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A New Jersey federal court has ruled that a class action plaintiff can bring a claim against the director and general manager of the defendant company (“director”) for personal liability under the Telephone Consumer Protection Act, 47 USC § 227 (“TCPA”).

The defendant is a trading company which provides training to consumers who wish to become Forex traders. The plaintiff is a resident of New Jersey who had a relationship with the defendant which ended four years ago. The plaintiff filed this class action lawsuit, claiming that the defendant used telemarketing to solicit potential consumers for its services, including through the use of pre-recorded voicemail messages without first obtaining the express consent of the consumer. The plaintiff alleges that he received an unsolicited phone call on his cell phone which he did not answer, which caused the defendant to leave a pre-recorded voicemail message, allegedly in violation of the TCPA.

The plaintiff filed a motion to add the defendant’s manager and impose individual liability on him because the manager allegedly: (1) expressly approved the transmission of the prerecorded messages; (2) determined the content and recording of the defendant’s pre-recorded messages; (3) determined to whom to make calls using the canned messages; and (4) loaded the phone numbers into a system called Callfire, which is allegedly the calling software used to place the defendant’s prerecorded message calls and also initiated the calls to the phone numbers he selected.

To support its claim for individual liability under the TCPA, the claimant relies on: (1) the decision of the FCC, In the matter of the joint petition filed by Dish Network, LLC, 28 FCC Rcd. 6574 (May 9, 2013) and (2) dicta in City Select Auto Sales Inc. v. David Randall Assocs., 885 F.3d 154 (3d Cir. 2018) (discussing that an officer of a company may be personally liable under the TCPA if he or she directly and personally participated in or personally authorized conduct in violation of the TCPA) . The defendant asserted that the FCC and the Third Circuit did not rule that liability under the TCPA extends to individuals acting on behalf of a business.

The New Jersey federal court ruled that the claim was not “frivolous” because there had been no reviewing court ruling that a personal liability claim under the TCPA did not exist. . Zoppi v. Proform Trading, LLC, No. 21-2307, 2021 US Dist. LEXIS 236306 (DNJ 9 Dec. 2021).

Course: Until there is a controlling court ruling or other guidance, adhere to the FCC ruling analysis (above) to minimize the likelihood of an individual liability claim under the TCPA

Warning: This alert has been prepared and posted for informational purposes only and is not offered, nor should it be construed as legal advice. For more information, please consult the full warning.

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