The most unfair rule in legal jurisprudence somehow just got even worse.
Unlike virtually every other area of law, actions taken by individuals in their corporate capacity can lead to direct and personal liability when dealing with the TCPA. The regrettable majority rule in TCPAWorld remains that while it has been held that any officer found to have “personally participated” in a TCPA violation undertaken by a company may be held personally liable for those violations. Sigh.
But what about a situation where a corporate officer tries—but fails—to comply with the TCPA? A court in Utah answered that question for TCPAWorld this week and it was not a pleasant answer.
In Alvord v. Quick Fi Capital, Case No. 2:19-cv-000459-DB, 2019 U.S. Dist. LEXIS 194026 (D. Utah Nov. 6, 2019) the court denied a motion to dismiss the CEO of the Defendant that had allegedly “participated” in TCPA violations by the corporation. His crime? He apparently had obtained the leads being called on by the Defendant and “took responsibility for TCPA compliance and authorized [Defendant] to call the numbers on the list.” Specifically, he ran the calling list “through TCPA compliance software before authorizing the calls.”
Let that sink in.
Because the CEO had required a potential lead list to be scrubbed using compliance software the Court found he was personally liable for allegedly made in violation of the TCPA. Talk about disincentivizing compliance. What corporate officer is going to want to be responsible for overseeing TCPA compliance regimes if they can be personally liable for things beyond their control—such as compliance software (presumably purchased to prevent such violations) that fails to faithfully prevent improper calling.
The rule authorizing liability for corporate officers in TCPA cases was bad enough already. Adding the new dimension that trying to comply opens the door to personal responsibility for violations makes TCPA compliance a “hot potato” problem that officers will seek to pass off rather than take on. What a mistake.