November 29, 2021

Volume XI, Number 333


Court Reminds Everyone Just How Hard it is to Allege Agency in the Ninth Circuit

The Ninth Circuit footprint is renowned for being consumer litigation friendly. And in many instances, it absolutely deserves that reputation.

There is one very nice upside to litigating in the Ninth Circuit, however. Following Jones, it has a very high vicarious liability standard. Indeed, some of the district court rulings that come out of the jurisdiction are the strictest in the country when it comes to vicarious liability allegations.

Here’s a for instance.

In Winters v. Quicken Loans, No. CV-20-00112-PHX-MTL2021 U.S. Dist. LEXIS 209695 (D. Az.  October 29, 2021)the Court concluded that even allegations that seller “substantially controlled the Telemarketing Agent’s actions by specifying the nature and type of calls to be made, by specifying the nature and type of the calls to be placed, the means by which such calls were to be placed, the content of such calls” were insufficient to state a claim against the seller.

In the Court’s view, the fact that Plaintiff alleged a contract existed between the Plaintiff and Defendant required the Plaintiff to allege the precise terms of the contract that brought the caller’s  conduct within the Defendant’s control. Absent those allegations, the Plaintiff’s allegations were simply conclusory in nature.

Notably the Court gave the Plaintiff one last shot to amend the complaint to allege the terms of the contract that are missing. The Court admonished the Plaintiff and his counsel to keep in mind Rule 11 in making any further amendments, however.

The Winters ruling is a great one and something to keep in mind anytime Plaintiff alleges vicarious liability stemming out of contract terms. This argument might not fly in some jurisdictions, but it works great in the Ninth.

Happy Monday TCPAWorld.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 312

About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is 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. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...