Take it from a guy who has handled a case or a thousand in federal court—the Ninth Circuit is a tricky place to litigate. But for all of its pitfalls in TCPA class actions—no ascertainability requirement, a low Article III bar and a truly-awful ATDS ruling—Defendants do have one very nice advantage in the Ninth Circuit footprint: a vicarious liability firewall that prevents TCPA exposure from running too far up the chain. Well.. at least most of the time.

Like the “human intervention” standard, the contours of vicarious liability—especially the viability of allegations at the pleadings stage—is somewhat in the eye of the beholding magistrate judge. In Rogers v. Postmates Inc., Case No. 19-cv-05619-TSH, 2020 U.S. Dist. LEXIS 36626 (N.D. Cal. March 3, 2020) that eye was particularly skeptical of conclusory allegations that delivery-giant Postmates had anything much to do with a text (allegedly) sent to Florida drivers begging them to join its network of drivers.

The allegations here—which must be accepted as true at the pleadings stage—actually look pretty good at first blush. First, the text itself rather plainly and prominently references Postmates and seems to be sent for its benefit. Here’s a super blurry image of it:

You’ll notice there is a link embedded in the text that leads to a real-life Postmates page where folks can sign up to deliver foodstuffs and knick knacks on demand. Plus the Complaint alleged Postmates—directly or through an agent or subagents—retained the services of the texter to send the texts. That all sounds like a pretty plausible case of a text attributable back to Postmates.

But not so fast. The hallmark of an agency relationship—especially in the improbably-persnickety Ninth Circuit— is control. And wishy washy conclusory allegations of control will not suffice—rather factual allegations of specific control over the injury-causing conduct is needed.

Poastmates argued that the Plaintiff’s complaint in Rogers did not include these heightened allegations and the Court agreed. All that existed was conclusory allegations that Postmates hired some texter to blat out its messages; but there were no factual allegations demonstrating control over the means of the transmission of the messages.

Plaintiff likely made his case worse by pointing to the FCC’s 2013 TCPA vicarious liability ruling. There the FCC held that sellers are not directly liable for calls made by third-party marketers but can be held liable under traditional vicarious liability doctrines. As noted, those traditional doctrines are untraditionally robust in Ninth Circuit TCPA cases and the Plaintiff’s factual allegations were otherwise a poor fit for the exemplar situations the FCC’s order addresses. For instance, the FCC’s order invites courts to consider whether a marketer has access to a seller’s computer systems, data or copyrighted materials and the Plaintiff’s complaint offered no allegations on point.

Moreover, the Court found the complaint’s allegations were conclusory on ratification as well—a mere assertion that Postmates knew texts were being sent was not a sufficient factual allegation that Postmates was knowingly accepting the benefits of illegal conduct.

So case dismissed.

Notice that Postmates—so very ironically—is getting fat off of home cooking here. Had this case proceeded in Florida—where the Plaintiff lived— a judge likely would have deemed the vicarious liability allegations sufficient—again Plaintiff need only establish plausibility at the pleadings stage. Then again, Glasser would have annihilated the case on the merits. (I mean the text includes the Plaintiff’s correct first name for goodness sake.) So one wonders whether judges on the West coast will take a dim view of (carpetbagging?) claimants filing suit in venues far from their homes in an effort to take advantage of the Ninth Circuit’s favorable ATDS and standing rules. That might explain why the Rogers court was so keen to dismiss this suit.

Notably the dismissal was without prejudice, so the Plaintiff will have another shot here. It will be interesting to see what additional allegations can be included—consistent with Rule 11—that might change the court’s view. We’ll keep an eye on this for you.