A New Jersey federal court ruled that a class action plaintiff may assert a claim against the defendant company's Director and General Manager ("Manager") for personal liability under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA") .
Defendant is a trading firm that provides training to consumers who want to become Forex traders. Plaintiff is a New Jersey resident who had a relationship with Defendant that ended four years ago. Plaintiff filed this class action lawsuit, asserting that Defendant used telemarketing to solicit potential consumers for its services, including through the use of pre-recorded voice messages without first obtaining the consumer's prior express consent. Plaintiff alleges that he received an unsolicited phone call on his cell phone that he did not answer which resulted in Defendant leaving a pre-recorded voice message, allegedly in violation of the TCPA.
Plaintiff filed a motion to add Defendant's Manager and impose individual liability on him because the Manager allegedly: (1) expressly approved the transmission of the pre-recorded messages; (2) determined the content of and recording of Defendant's pre-recorded messages; (3) determined whom to make the calls using the pre-recorded messages; and (4) loaded telephone numbers into a system called Callfire, which is allegedly the call software used to make Defendant's pre-recorded message calls and also initiated the calls to telephone numbers he selected.
To support his claim for individual liability under the TCPA, Plaintiff relies on: (1) FCC decision, 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 a corporation's officer may be personally liable under the TCPA if he had direct, personal participation in or personally authorized the conduct violating the TCPA). Defendant asserted that the FCC and the Third Circuit have not ruled that liability under the TCPA extends to individuals acting on behalf of a company.
The New Jersey federal court ruled that the claim is not "futile" because there has been no controlling court ruling that a claim for personal liability under the TCPA does not exist. Zoppi v. Proform Trading, LLC, No. 21-2307, 2021 U.S. Dist. LEXIS 236306 (D. N.J. Dec. 9, 2021).
Lesson: Until there is a controlling court ruling or other guidance, comply with the analysis in the FCC decision (above) to minimize the likelihood of an individual liability claim under the TCPA
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.
