Sellers Can Escape TCPA Exposure From Vendors’ Wrongdoing: Manatt

The recent decision in U.S. District Court for Middle Tennessee in Nashville showed that a contract prohibiting Telephone Consumer Protection Act violations protected a seller when its telemarketing vendor allegedly ran afoul of the statute, said Manatt Phelps law firm in an analysis Tuesday. U.S. District Judge Aleta Trauger’s decision in the case, Black v. SunPath (docket 3:21-cv-00023), “serves as a reminder that contractual provisions with vendors prohibiting TCPA violations can provide important safeguards against a finding of vicarious liability,” it said. SunPath, a seller of vehicle extended service contracts, struck a call center marketing agreement (CCMA) with its vendor, Vehicle Activation Department (VAD), that required the vendor to operate in accordance with all FCC rules and regulations and to obey all state and federal statutes, said Manatt. SunPath moved for summary judgment, arguing it was not responsible for calls made by VAD, it said. Trauger agreed, granting the motion. “The CCMA unambiguously states that SunPath did not wish for VAD to violate the TCPA,” said her memorandum and order. “Permitting recovery against upstream sellers presents a possible way to stanch the demand for unlawful telemarketing, as an alternative to chasing one fly-by-night robocalling operation after another in an attempt to reduce the supply,” it said. “A policy argument for vicarious liability, however, is no substitute for establishing that such liability applies in this particular case.”