June 27, 2022

Volume XII, Number 178

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June 27, 2022

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Candidates Liable for Campaign Texts?: Child Actor and Former Presidential Candidate Facing Personal Liability in TCPA Class Action in Puerto Rico

As TCPA.World readers know, TCPA class actions related to political messages are something of a growing pastime. If you’re a Republican, you sue Democratic campaigns who pester you with unwanted messages. If you’re a Democrat, you sue Republican campaigns–or perhaps the Republican National Committee–for such messages.

The fun part is that since all candidates and campaigns seem to be robocalling people these days regardless of party affiliation, everyone can join in–and there’s seemingly no limit to the number of lawsuits that can arise out of campaign season (which is just about to start.)

Well a new TCPA case out of Puerto Rico should give political candidates a bit of pause–it turns out these folks can be PERSONALLY SUED for messages sent by their campaigns. And that’s a bit of a stunner.

In Rowan v. Pierce, CIVIL NO. 20-1648 (RAM)2022 U.S. Dist. LEXIS 14547 (D.P.R. January 21, 2022) the Court refused to dismiss former presidential candidate Brock Pierce from a robocall lawsuit arising out of campaign messages promoting his failed bid to be President.

Since Brock Pierce was a child movie star and a crypto millionaire, he felt he was well-qualified to lead our nation back from the COVID pandemic–and who’s to say he was wrong–and decided to use prerecorded calls to let everyone know about it. Unfortunately for him, of course, the TCPA bans prerecorded calls to cell phones–even voicemails and even political messages–without express consent of the called party. And the TCPA is enforceable in private class action lawsuits that can net $500-$1,500 a call, as TCPAWorld readers well know.

But what is less well known, is whether candidates can be personally sued for messages from their campaigns. Usually these suits are focused solely on the campaign and do not seek to personally name the candidate. In fact, while I can think of suits where a platform used by a candidate was sued–and even the owners of the platform were personally sued–I can’t think of another time a candidate was personally sued for a campaign message.

Well the Rowan court had no problem with the concept and held that Pierce could be personally liable because the complaint alleged Pierce: (1) collected independent voter lists to gather voters’ phone numbers; (2) created and controlled the content of the prerecorded calls; (3) determined to whom the calls should be made; (4) authorized the prerecorded calls; and (5) sent the prerecorded messages to individuals without first obtaining their consent to receive them.

So if it turns out Pierce wasn’t personally involved with these efforts then he can’t be held liable. But if he was… Pierce will have t pay $500 (or more) for each call that violated the TCPA–and that could cost Pierce literally dozens of bitcoin (or millions of that less valuable currency known as dollars).

So there you go folks, just like CEOs and corporate officers, directors, employees and compliance staff, candidates can also be personally liable for messages sent under their control.

Will this slow the rampant scourge of political robocalls this year? Probably not. But it should make for a bunch of fun political TCPA suits. I’ll keep an eye on this for you.

© 2022 Troutman FirmNational Law Review, Volume XII, Number 52
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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