TCPA Defendant Seeks to Put Its Vendor on the Hook for Damages if It Loses

In an unusual twist for a Telephone Consumer Protection Act case, a TCPA class-action defendant sought Wednesday in U.S. District Court for Eastern Pennsylvania in Philadelphia to hold its telemarketing vendor accountable for all damages and court costs should the plaintiff and his putative class members win the case.

Plaintiff Mark Fidanza’s second amended complaint alleges the Republican Committee of Chester County (RCCC), Pennsylvania, inundated Fidanza’s cellphone with 17 text messages between Oct. 19 and Nov. 8 during the run-up to the midterm elections. The amended complaint, filed April 5 (see 2304060001), added Buzz360, the vendor that the RCCC hired to send the text messages, as a co-defendant. The RCCC identified Buzz360 as its vendor in an affidavit earlier in the case.

The RCCC answered that amended complaint with a “crossclaim” asserting that “any liability imposed by the court or a jury” against the RCCC “is the sole or partial responsibility of Buzz360 due to its violation of statute, rule, common law tort or other liability.” The RCCC “hereby incorporates and reasserts” against Buzz360 “all of the averments, counts and claims asserted” against the RCCC, which the RCCC “nevertheless denies,” said its answer (docket 2:22-cv-05185).

Fidanza and his putative classes “have asserted various averments, counts and claims, and demands for relief” against the RCCC. If he or his putative classes “are successful in obtaining a judgment” against the RCCC “for any of these claims, counts and prayers for relief, then Buzz360 “is responsible to indemnify” the RCCC “for that entire judgment, including costs and fees,” it said.

The RCCC is represented in the case by Warren Kampf of Buckley Brionm who also serves as the RCCC's solicitor. Buzz360 hasn’t answered Fidanza’s complaint since being added as a co-defendant a little more than two weeks ago, nor has any attorney entered an appearance on the vendor’s behalf. Buzz360, headquartered in Minneapolis, didn’t respond Thursday to an email seeking comment.

Despite seeking to hold Buzz360 accountable for damages and costs in an unfavorable TCPA judgment, the RCCC’s denies it or “any of its vendors” used an automatic telephone dialing system to send political text messages to Fidanza or his putative classes, in violation of the statute, said RCCC’s answer. The RCCC otherwise didn’t violate the TCPA, it said.

On Fidanza’s allegations he received 17 RCCC text messages in the three-week period before the Nov. 8 election, the RCCC, “after reasonable investigation,” lacks “sufficient information to form a belief as to the truth of the averment,” said its answer. The RCCC doesn’t deny “that it contracted for text messages to be sent to certain phone numbers” leading up to the November election, “nor that recipients received these text messages,” it said. But the RCCC “denies the other averments asserting who actually sent them, how and when they were sent or responded to and any other averment related thereto,” it said.