PLAYING WITH FIRE: Court Confirms No Non-Delegable Duty to Control Telemarketers Under TCPA in Most Roundabout Way Possible

Ever since the fantastic decision of Smith v. State Farm Mut. Auto. Ins. Co., 30 F. Supp. 3d 765 (N.D. Ill. 2014) my TCPA practice guide has had a section providing “there is likely no non-delegable duty to control third-parties under the TCPA.”

While so much of TCPAWorld jurisprudence has been erected, tested, torn down, and re-built in the last 7 years the Smith case has remained wondrously untouched—a seemingly undiscovered gem in a heaving TCPA jungle.

Well that issue was recently tested in Worsham v. Direct Energy Services, LLC). Civil No. 120-cv-00193, 2021 U.S. Dist. LEXIS 90780 (D. Md. May 12, 2021) and the Court seemed to struggle mightily before ultimately reaching the correct conclusion.

Backing up, the non-delegation doctrine is a legal rule that says one party is always responsible for the behavior of another when dealing with certain highly-dangerous activities. Think, explosives. If I’m hired to demo a building and I decide—hey, this is kind of risky maybe I’ll get some stooge to do it for me at half the cost, I’m not going to get away with it. The law will impose a non-delegable duty on me as the person who has taken on the responsibility to safely tear down the building to make sure I, in fact, tear down the building safely. I can certainly hire someone else to do it but, if they screw up I’m on the hook.

Applying the non-delegation doctrine to telemarketing doesn’t really make much sense. On the one hand, no one is hiring the seller to take on a “non-delegable” duty to begin with. Since the seller did not take on a duty it cannot be said that the telemarketer violated that duty to begin with. Plus telemarketing isn’t the same thing as using explosives. Yes marketing calls can be annoying, but explosives can kill people which is arguably even worse.

In Smith the Court had reasoned: “Although the recipients of unwanted telemarketing calls certainly may consider them a “nuisance,” telemarketing calls are not the type of “public or private nuisance” referred to Restatement of Torts § 427B. Section 427B encompasses, for example, construction of a dam that will necessarily flood other land, blasting for excavation that damages nearby structures, or disposal of hazardous wastes—not the slight annoyance and cost of receiving unwanted telemarketing calls.” As Smith also noted—Congress knows how to create such duties when it wants to and it did not do so with the TCPA.

So, as noted, for seven long years the law has been clear—at least according to my authoritative book on the subject—that no non-delegable duty exists in this context. And then along comes Mr. Worsham to test this theory.

The Court in Worsham rejected the non-delegation doctrine but it did it only inferentially—which I hate. Specifically, the Court found that there was no precedent on the subject and concluded based on the “large amount of cases finding various other forms of vicarious liability for TCPA violations” that no such non-delegable duty exists. If it did, the reasoning goes, those cases would be irrelevant.

I hate inferential reasoning—its akin to seeing a puddle on a hot day and determining a snowman must have been there previously. How about the fact that the FCC issued a ruling specifically rejecting direct liability in this context and requiring a vicarious liability determination? How about the Smith case and its correct observations that the TCPA facially creates no such duty and marketing calls aren’t the same thing as blowing up a dam?

Ok, I hate rhetorical questions too.

Hmmmm. Apparently I’m grumpy this morning. But not at you TCPAWorld.

Anyway, there’s your close shave, near miss, asteroid-that-almost-hit-Earth-that-no-one-knew-was-there case for the day. Chat soon.


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