March 5, 2021

Volume XI, Number 64

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TCPA Quick Hitter: Contract Requiring TCPA Compliance Not Enough to Escape TCPA Liability

“Do as I say, not as I do.”  It doesn’t work.  That’s true for a recent TCPA decision denying a defendant’s motion for summary judgment.  See Williams v. Pillpack LLC, C19-5282 TSZ, 2021 U.S. Dist. LEXIS 4052, *5 (W.D. Wash. Jan. 8, 2021).

There, Pillpack contracted with a third-party, the “Agent,” to make certain telemarketing calls.  A recipient of the calls sued, claiming they violated the TCPA.  Pillpack argued that it could not be liable for the calls because the Agent made them, not Pillpack.  Pillpack emphasized that its contract with the Agent “required the Agent to comply with the TCPA and all applicable laws”; so, Pillpack argued, the Agent could not possibly have “actual authority” to make the unlawful calls on Pillpack’s behalf.

That argument did not fly.  The District Court rejected it because the plaintiff produced evidence from a person who introduced Pillpack to the Agent.  According to that sworn testimony, the Agent told Pillpack it would place calls “using a prerecorded voice system,” and that a third party “would be placing the calls.”  This testimony (possibly hearsay?) was enough to create a fact issue, despite Pillpack’s contract with its Agent.  The Court denied Pillpack’s motion for summary judgment.

A contract that requires a third-party to “comply” with the TCPA will not defeat TCPA liability if the company knows the third-party’s conduct is not actually TCPA compliant.  As is often the case, what you do–not what you say–counts.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 17
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About this Author

Brent Owen Energy Litigation Attorney Squire Patton Boggs Denver, CO
Senior Associate

Brent Owen represents energy, mining, construction, consumer services, and political clients in high-stakes litigation at trial and on appeal. Brent’s college experience as a full-scholarship Division I offensive lineman allows him to appreciate the value of consistent hard work in achieving a favorable result.

His experience includes all aspects of litigation, including trials in both state and federal courts before judges and juries and in arbitration tribunals, including the International Chamber of Commerce and the American Arbitration Association. A former law clerk to the...

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