The number of Telephone Consumer Protection Act (TCPA) class action lawsuits has exploded in the past couple of years. The October 16, 2013 amendments to the TCPA regulations and the often liberal interpretation of the statute by Federal District Courts and the Federal Communications Commission (FCC) has further emboldened TCPA class action plaintiffs. There now seems to be a growing trend to name officers and stakeholders of marketing and advertising companies as defendants in TCPA actions as well. Obviously such practice is intended to be coercive, to add additional sources of financial recovery, and to induce faster settlements. Since the TCPA allows for actual damages, or statutory damages ranging from $500.00 to $1,5000 per unsolicited call / text message, the consequences of defending and potentially being held liable in such cases can be financially devastating to corporate officers and stakeholders alike. Unfortunately, courts have often allowed TCPA actions to proceed against individuals and have ultimately imposed liability against them.
Recent TCPA Caselaw On the Issue of Personal Liability
As a result of the apparent spike in cases naming officers and stakeholders individually, a body of caselaw on this issue is evolving. It is important to note that each case is different and each relies upon the individual facts of the particular case and marketing campaign. Nonetheless, court rulings on the issue of individual liability have been most telling. By way of example, various courts have held as follows:
- Individuals acting on behalf of a corporation may be held personally liable for violations of the TCPA where they had direct, personal participation in, or personally authorized, the conduct found to have violated the statute;
- If an individual acting on behalf of a corporation could avoid individual liability, the TCPA would lose much of its force;
- If the individual defendants actually committed the conduct that violated the TCPA, and/or . . . actively oversaw and directed the subject conduct, they could be held individually liable for the statutory violations at issue; and
- Corporate executives were personally liable where they set company policy and oversaw day-to-day operations that violated the TCPA.
Fortunately, some courts have refused to hold individual officers or owners personally liable. One Florida court recently ruled:
- In order to hold the officer and part owner liable, defendant would need to show that the individual failed to take efforts to implement appropriate policies or procedures designated to comply with the TCPA or that he authorized or personally engaged in conduct that clearly violated the TCPA. To the contrary, the defendant in this action did the opposite, by actively participating in his company’s attempts to implement TCPA compliant policies. A recent Ohio TCPA suit similarly held in favor of the corporate owners / officers.
How To Avoid Being Named Individually in a TCPA Lawsuit
A penny of prevention is worth a pound of cure. The days of “seat of your pants” TCPA compliance are over. Resist the temptation to gauge your TCPA compliance by anecdotal comparison to that of your peers. Such comparison is irrelevant. The best way to avoid being named in a TCPA action is to work closely with counsel experienced in the intricacies and nuances of the TCPA and associated telemarketing practices. If you are still named in a TCPA lawsuit, your counsel will be armed with knowledge of your business and compliance efforts and, therefore, will be in position to quickly and effectively outline the legal and factual reasons as to why you should be immediately dropped from such suit.
This topic should be of interest to any company or individual engaging in a commercial venture within the United States, especially those involved in the text message marketing, telemarketing and/or lead generation industries.