Hurst v. Mauger, No. 1:11-cv-08400 (N.D. Ill. Apr. 16, 2013)

FACTS:

  • Defendant Plimus, Inc. (“Plimus”) provides a payment platform for use in the sale of the products and services of its authorized vendors. Defendant Jean Mauger (“Mauger”) was a Plimus platform authorized vendor.
  • The authorized vendors are responsible for the marketing of their products and services.
  • Plimus receives revenue from the sale of products and services by its vendors on a per transaction basis.
  • According to the complaint, Mauger allegedly acquired phone numbers from third parties for the purpose of sending unauthorized text message advertisements “for and on behalf of Plimus.”
  • Plaintiff Hurst claimed to have received two (2) text messages from Mauger advertising a satellite T.V. and Internet access, which included a link to a Plimus website.
  • Plaintiff alleged that the website facilitates the purchase of a product from Plimus.
  • Hurst filed this complaint individually and on behalf of others similarly situated, claiming that defendants Mauger and Plimus violated the Telephone Consumer Protection Act (the “TCPA”) by transmitting unsolicited commercial text messages.
  • Plimus moved for summary judgment. Mauger failed to appear.

PERTINENT PART OF TCPA:

  • Individuals may bring an action under Section 227(c)(5) of the TCPA for the receipt of unsolicited text messages which were sent “by or on behalf of the same entity.”

COURT DECISION: A MATTER OF FIRST IMPRESSION:

  • The court was asked to decide, as a matter of law, whether the text messages in question were sent “on behalf of” Plimus.
  • First, the court pointed out that case law from other circuit and district courts have reached varying conclusions as to whether an entity on whose behalf a call/text is made can be liable under the TCPA.
  • The court had to determine whether the statutory language “on behalf of” should be construed broadly in order to extend liability to Plimus.
  • Upon review, the court deemed Plimus’ services to be “payment processing services” and that it acted merely as a platform through which to purchase Mauger’s product.
  • Pursuant to this line of reasoning, the court noted that Plimus was not the seller of the product, nor was the product a Plimus product.
  • Further, the court found that the 10% commission Plimus earned did not “rise to such a level that the text messages can be said to have been sent on behalf of, or for the benefit of, Plimus.”
  • The court determined that Plimus should be considered merely an intermediary between Mauger and the purchasers of Mauger’s product; Plimus had no involvement in the marketing of the product, including the transmission of text messages.
  • Accordingly, the court granted Plimus’ motion for summary judgment.

TAKE AWAY:

  • There have been at least two (2) lawsuits referred to the Federal Communications Commission (“FCC”) for determination as to whether the “on behalf of” language within Section 227(c)(5) applies to defendants in those cases.
  • One day after this decision came down, the FCC issued a declaratory ruling in the DISH Network, LLC proceeding in the Central District of Illinois.
  • In defining “on behalf of” liability, the FCC found that “the seller may be held vicariously liable under federal common law principles of agency for TCPA violations committed by third-party” telemarketers.
  • As Plimus was not considered a seller, the decision of the court in Hurst v. Mauger is consistent with the FCC declaratory ruling.