Testing the limits of TCPA indemnity, a defendant recently attempted to make an indemnity claim against the plaintiff’s husband for the defendant’s alleged TCPA violations. The Court used the opportunity to explain the elements of a TCPA claim and clarify the scope of TCPA indemnity. The decision in Anthony v. Progressive Leasing, may complicate future defendants’ attempts to assert TCPA indemnity. No. 1:19-cv-04431-TWP-MJD, 2020 U.S. Dist. LEXIS 105846 (S.D. Ind. June 16, 2020).
Plaintiff in that case sued the defendant for allegedly making unauthorized phone calls to her cell phone “in its attempt to collect a debt from a third party,” her husband. The defendant explained that the husband had represented the plaintiff’s number “to be his home telephone number” and that he had authorized the calls. Despite that, the court rejected the defendant’s indemnity claim against the husband. Critically, the Court emphasized, plaintiff’s claims related to debt collection calls made after she revoked consent. And, moreover, the Court cited numerous decisions holding that the TCPA does not create an affirmative cause of action for contribution or indemnification.
Though suing a spouse for indemnity from the TCPA is creative; it did not work this time and the decision explains why it is unlikely to work in future TCPA litigation.
What do you think would have happened if the litigants were parties to a contract that provided for indemnification for providing a number that is not yours?
Those clauses are great. Use them. But it wouldn’t have mattered here–different fact scenario.