One of the most frustrating rules in TCPAWorld is the presumptive right of a Plaintiff to pursue a judgment against individual officers, directors or managing agents of a TCPA corporate defendant merely because they “participated”—whatever that means—in a corporate violation of the TCPA. While some courts have recently (and properly) pushed back against this trend, the majority rule remains that such individuals can be held personally liable for potentially life-altering judgments in these cases.
Well in Dickey v. Vital One Health Plans Direct, LLC, No. 1:18-cv-01399-DAD-BAM, 2019 U.S. Dist. LEXIS 140350 (E.D. Cal. Aug. 18, 2019) a court just enabled a TCPA Plaintiff to add managing agents personally to the complaint after the deadline to amend the pleadings had run in the case. For reasons I cannot fathom the corporate Defendant did not object to the addition of these managing agents to the case. The court, accordingly, found good cause to modify the scheduling order and allowed the unopposed amendment to take place.
Here are the key allegations that were asserted justifying the amendment. Notice how the corporate representative’s deposition testimony was used against the managing agents for purposes of the amendment—this is high stakes poker folks and deposition preparation should be taken very seriously:
Defendant RENE LUIS (“Luis” or “Defendant”) is an individual who at all relevant times was a Florida resident. At all relevant times hereto, Luis was a Managing Partner of Vital One, and as such, conducted and authorized day-to-day Vital One operations. In his capacity as Managing Partner, Luis had direct, personal participation in or personally authorized the conduct found to have violated the TCPA, and was not merely tangentially involved. As Managing Partners, Luis and Gracia authorized the implementation of Vital One’s Do Not Call policies and procedures. On June 5, 2019 Diaz testified as Vital One’s Federal Rule of Civil Procedure 30(b)(6) witness that “all activities are authorized by the managing partners.” Luis testified during his deposition on June 6, 2019 that he and Gracia authorized day-to-day activities at Vital One and that both he and Gracia reviewed documents that formed part of Vital One’s Do Not Call policies and procedures, including contracts with third parties who provided consumer information to Vital One. During his deposition as Vital One’s employee on June 6, 2019, Diaz stated that he, Luis, and Gracia would fill in information contained in Vital One’s Do Not Call policies and procedures that was previously provided as a template from a TCPA compliance consultant and the document was reviewed by Luis and Gracia as Managing Partners.
Defendant MARTIN DIAZ (“Diaz” or “Defendant”) is an individual who at all relevant times was a Florida resident. At all relevant times hereto, Luis was the Director of Operations of Vital One, and as such, conducted and authorized day-to-day Vital One operations. In his capacity as Director of Operations, Diaz had direct, personal participation in or personally authorized the conduct found to have violated the TCPA, and was not merely tangentially involved. On June 5, 2019, Diaz testified that he “would have been involved in the putting together” of Vital One’s Do Not Call policies and procedures and the dissemination of those policies and procedures. On June 6, 2019, Luis testified that the Managing Partners relied on Diaz’s knowledge and input…
It remains to be seen whether these allegations are sufficient to allow for personal liability. (I have an opinion on the matter). It would be pretty scary if these folks were held personally liable for merely reviewing and adopting procedures (presumptively) designed to comply with the TCPA. At least one court has already found that failing to adopt proper procedures is an insufficient basis to hold an officer directly liable for corporate TCPA violations. We’ll keep you posted on what happens here.