I hate to dwell on the negative–especially this time of year-but here’s a quick story that’s more egg than nog.
I’ve been bemoaning the terrible rule permitting personal liability in TCPA class actions for years now. It doesn’t matter whether employees take actions on behalf of their employer–if they are directly involved in a TCPA violation by a company many courts will allow them to be personally sued for it. And its just gross.
Grosser still (IMO) is when class lawyers add management level employees to class actions in a transparent move to gain settlement leverage.
Consider the case of Zoppi v. Proform Trading, LLC, Civ. Action No. 21-2307 (CCC) (JSA), 2021 U.S. Dist. LEXIS 236306 (D. N.J. December 9, 2021).
The case apparently arises out of a single prerecorded call received in January, 2021. Within 15 days the Plaintiff had filed a class action against the alleged sender of the call.
After litigating the case for seven months the Plaintiff decided it would be a good idea to not just sue the company but to include a Director and General Manager–some guy named Nathan Allred– “as an individual defendant and impose individual liability on him pursuant to the TCPA.”
Well, that’s just not very nice.
The Defendant opposed the motion but the Court allowed the amendment to proceed last week so that Mr. Allred can be sued personally. Determining that the proposed amendment was not “futile” the Court concluded Allred might be personally liable because Plaintiff alleged has alleged he “personally recorded and made the TCPA violative pre-recorded voice call to Plaintiff’s cell phone in violation of the TCPA.”
NO Christmas spirit in TCPAWorld, apparently.
So there you go–if you are a voice talent working for a company and allow yourself to be recorded, or otherwise make a call that is a violation of the TCPA you can be personally sued.
What I find interesting, however, is that the decision does not discuss whether Allred was involved in calls to all class members. If not then seemingly the class component of the case might be severely damaged by the addition of Allred to the claim. But I’ll keep an eye on the case and see where it goes.
For now, however, the lesson is clear– companies need to take TCPA compliance extremely seriously. For their own sake and for the sake of their employees this holiday season.