Happy Monday TCPA World! Its Martin Luther King Day! As we honor the late Dr. King, I wanted to share one of his famous quotes:
“For when people get caught up with that which is right and they are willing to sacrifice for it, there is no stopping point short of victory.”
-“I’ve Been to the Mountaintop” speech, April 3, 1968.
So, I bring you a new TCPA decision out of my home Court, USDC EDPA. The case is Marrero v. MJ Ministries Spreading the Gospel, Inc.
In summary, a former Pastor who violated the TCPA drags in a ministry (Defendant) into a new TCPA suit because it authorized the Pastor to receive donations as a form of repayment for Pastor’s debt! Seems like the Pastor is spreading more than the gospel.
Plaintiff alleges that he received 46 prerecorded calls with identical prerecorded messages from an individual who identifies himself as “Pastor.” In a failed attempt to stop the unwanted calls, Plaintiff followed the prerecorded instructions and made an online $50.00 donation. (Since when does making a payment STOP pre-recorded calls ?? ok moving on) He subsequently received a digital receipt from “MJ Spreadin.” (i.e., Defendant). In spite of that, Plaintiff continued to receive calls.
The Court denied Defendant’s motions and dismissed Plaintiff’s motion. On the one hand, Defendant moved for summary judgment and to stay discovery because the court lacks personal jurisdiction. On the other hand, Plaintiff moved to compel Defendant’s initial disclosures, discovery responses and production of documents.
Plaintiff is a resident of Pennsylvania and Defendant’s principal place of business is in Atlanta, Georgia. Because the defendant raised a lack of personal jurisdiction, the burden shifts to the plaintiff to establish “with reasonable particularity sufficient contacts between the defendant and the forum state.”
The Court must determine whether, under the Due Process Clause, a defendant has sufficient minimum contacts with the forum state “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” The “minimum contacts” test.
Defendant argues that it has never made or authorized telemarketing calls to solicit donations and that it does not conduct business in Pennsylvania. However, Plaintiff alleges that Defendant authorized “Pastor”- Y.M. Jordan- to solicit donations and is therefore, vicariously liable for the calls.
Defendant concedes that Jordan (“Pastor”) was cited previously by the FCC for TCPA violations. Is that so?
But Defendant distances himself by arguing that Jordan only has a ‘limited’ relationship with Spreading the Gospel (Defendant) because Jordan’s brother is a member of Defendant’s board. And subtly but importantly, Defendant notes that it had agreed to repay some of Jordan’s debt up to –a whopping – $475,000. As repayment, Jordan agreed to place on his website a donation link from which donations would go back to Defendant. So that’s where the donation money goes…
The Court agreed with Plaintiff and found personal jurisdiction. Hello, vicarious liability.
While Defendant denies the existence of a principal-agent relationship, it lends credence to a claim of actual authority by acknowledging its reimbursement arrangement with Jordan, whereby Defendant permitted Jordan to collect online donations on its behalf on Jordan’s website. To be clear, online donations were not on the Defendant’s website, but the donation receipt named Defendant.
Although a seller “does not generally ‘initiate’ calls made through a third-party telemarketer within the meaning of the TCPA, it nonetheless may be held vicariously liable under federal common law principles of agency for violations of” Section 227(b). The implementing rules for the TCPA “generally establish that the party on whose behalf a solicitation is made bears ultimate responsibility for any violations.”
As for the Motion to Stay, Defendant insisted that the parties settled at an earlier settlement conference, but Plaintiff expressly denied that a settlement had been reached. Thus, the Court found that there was no basis for a stay.
Despite Plaintiff’s repeated, good-faith attempts to resolve the discovery dispute and Defendant’s refusal based on its assertion of a settlement, the Court dismissed the Motion to Compel as moot holding that discovery could proceed in earnest and ordered the parties to firmly adhere to the discovery deadlines.
- The party on whose behalf a solicitation is made bears ultimate responsibility for any violations.
- Authority may be implied if a party receives the benefit of the solicitation, even if it didn’t directly control the solicitation.
- If you want to know how to do it right, reach out to the Troutman Firm. You, too, deserve to win!
Til next time, Countess!!