First big congrats to the Troutman Firm on its win in that CarGaurd suit. That’s how you win in TCPAWorld.
On to some other big news, however.
The President of Credit Pros is stuck in a TCPA class action in New Jersey related to credit improvement texts.
The texts at issue stated “Adam begin 2021 with a credit improvement journey 3044037938 chat with our team now.” The Plaintiff sued Credit Pros arguing that the texts were sent using an ATDS. And he sued Kaplan personally asserting that he “is the face of Credit Pros marketing department and their Chief Compliance Officer and under these roles “he reviews and approves all marketing by Defendant Credit Pros.”
The Defendants moved to dismiss the case arguing that Kaplan cannot be personally sued—the texts were sent by Credit Pros, and not by him personally— and that the texts were not sent using an ATDS. While the Court granted the motion on ATDS grounds—more on that below—it held that Kaplan was stuck in the case.
As the Czar often says, the TCPA’s application to individuals—particularly compliance officers and those who are actually trying to assure TCPA compliance—is the “most unfair rule” in all of American jurisprudence. It is absurd to think that a compliance officer trying to help a company comply with the statute can be held personally liable for a mistake, but those are the stakes in TCPAWorld.
In Champion v. Credit Pros, 2022 WL 3152657 (D. N.J. August 5, 2022) the Court held directly that Mr. Kaplan could be sued directly and personally for the texts sent by Credit Pros:
Under the TCPA, an individual may be personally liable pursuant to 47 U.S.C. § 217. This section provides the “act, omission, or failure … of any officer … acting for or employed by any common carrier or user, acting within the scope of his employment, shall in every case be also deemed to be the act, omission, or failure … of such carrier or user as well as of that person.” 47 U.S.C. § 217… In other words, if the corporate officer has been found to be more than tangentially involved in the conduct which has found to be in violation of the TCPA and was involved in the sending of calls or texts, he may be held personally liable.
Here, Plaintiff’s alleges, among other things, that “Defendant Kaplan is the President of Defendant Credit Pros, and personally runs, authorizes, and oversees the telephone Marketing.” Plaintiff further alleges that Defendant Kaplan is the face of Credit Pros marketing department and their Chief Compliance Officer and under these roles “he reviews and approves all marketing by Defendant Credit Pros.” Id. Accepting the facts above as true, Mr. Kaplan appears to be more than “tangentially involved” in the telemarketing employed by Credit Pros. Therefore, Plaintiff has alleged sufficient facts to establish the first factor of a TCPA claim.
Mercifully, however, the Court went on to hold that the Complaint failed to state facts showing an ATDS was used. As the Czar reported at the TCPA Summit, text messages remain the “Safest Channel” after Facebook, and the Champion case shows why. Without focusing on any particular definitional analysis, the Champion court held simply that the texts did not appear random and that merely texting from a stored list of numbers was not sufficient to trigger the TCPA. So case dismissed.
It should be noted, however, that Kaplan and Credit Pros are still stuck in the suit. The Court granted the motion without prejudice, which means the plaintiff can add more facts to show that the texts were sent using an ATDS.
I’ll keep an eye on this one for you.