Personal liability for TCPA violations is at issue again in Callier v. National United Group, 2022 WL 4088205 (W.D. Texas, El Paso Sept. 6, 2022). And this time the question is when someone can be vicariously personally liable—which you do not see every day.
TCPA Plaintiff’s Lawyer discusses personal liability in TCPA suits. For more GREAT content be sure to follow our incredible You Tube channel!
Two individuals are alleged to have been responsible for calls to the named Plaintiff. Both brought motions to dismiss. While the Court found that both might be liable under the TCPA on a theory of personal liability—terrible—the Court found that the Plaintiff only alleged facts sufficient to state a claim as to one of the individuals.
Specifically, Liza Polanco, CEO of LPV Services, Inc. escaped liability—the Court found Callier had failed to allege she made any specific calls—but Maria Allen Cardona, CEO of Allen Insurance is left languishing in the case—her motion to dismiss was denied because she allegedly made calls to Plaintiff without consent.
Zooming out, Mr. Callier alleges that he received hundreds of phone calls from various parties and the battle over Cardona and Polanco was just a small piece of a larger puzzle.
Callier engaged in some unpleasant behavior here. In order to track down responsible parties, Mr. Callier actually purchased multiple health insurance policies stemming those phone calls (even using a Spanish translator at times). He alleges that Ms. Cardona and Ms. Polanco, although not the ones who personally made the calls, are still responsible through an agency relationship. The Court addressed Ms. Cardona and Ms. Polanco’s potential liability by considering “the common law agency principles and the practical realities of TCPA enforcement.”
Neither Ms. Polanco nor Ms. Cardona actually disputed the fact the phone calls made were in violation of the TCPA. Thus ultimately, the Court found that at least one of the calls violating the TCPA could be sufficiently linked to Ms. Polanco. This was because a particular sale was able to be traced back to a particular phone call which, in turn, was traced back to Ms. Polanco. She is listed in a national database as being responsible for selling insurance policies. National Health Marketplace informed the Callier that Ms. Polanco was the agent to sell the policy to him and went so far as to give him her National Producer number. This linkage causing an agency relationship was not sufficient against Ms. Cardona. There was not enough factual support for the Court to make a plausible inference of an agency relationship between Ms. Cardona and whoever made the call.
So there you go. Even though Polanco did not make the calls herself she was still potentially PERSONALLY liable on a VICARIOU liability theory. Bizarre.